TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS FEBRUARY 22, 2010 MINUTES

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1 TOWN OF MOUNT PLEASANT, SOUTH CAROLINA BOARD OF ZONING APPEALS FEBRUARY 22, 2010 MINUTES Present: Absent: Staff: Charles Moore, chair, Don Gwinnup, Robert Hollings, Saila Smyly, Mason Smith Ann Dovre-Coker and David Wilcox Michael Robertson and Linda Lancaster public. Mr. Moore called the meeting to order at 6:00 p.m. and reviewed the procedures with the A. Roll Call Mr. Moore stated that Ms. Ann Dovre-Coker had an excused absence. Mr. David Wilcox had an unexcused absence. B. Approval of Minutes Mr. Smith moved to approve the minutes from the previous meeting. Ms. Smyly seconded the motion. All in favor. C. Approval of Agenda Mr. Gwinnup moved to approve the agenda. Mr. Hollings seconded the motion. All in favor. D. Correspondence Mr. Robertson stated there was no correspondence. E. Unfinished business Mr. Robertson stated there was no unfinished business. New Business 1. Case V Woodland Pointe Place, Glenlake Subdivision, TMS# Request variance approval for a rear yard setback of approximately twenty-one feet for construction of a wooden deck and approval of existing encroachment by screened porch on property zoned R2, Low-Density Residential. Zoning Code Section (D)(2) requires a rear yard setback of 25 feet. Mr. Robertson reviewed staff comments as follows: Please refer to Form 3 and associated exhibits for applicant s justification of the relief sought. The property is one of several cul-de-sac lots within the Glenlakes Subdivision as indicated by the applicant s Form 3 exhibit map. The property is zoned R-2 Low-Density Residential District. The R-2 building setbacks require a 25 foot front yard, a 25 foot rear yard, and a combined side yard of 20 feet with a minimum of 10 feet on any one side yard. A Building Permit was issued by the Town s Building Inspections Department on June 6, The permit file includes a survey dated April 1, 1996 by ARC Surveying for the property showing that the proposed structure will meet the R-2 Zoning requirements.

2 Page 2 of 9 The Town was contacted by the applicant upon their desire to construct a deck on the rear of the house which includes an open portion of deck and a portion covered by a pergola. Upon review of the deck building plans, it was determined that the deck would encroach into the setback; therefore, requiring a variance. The site plan submitted for the work indicated that the existing porch encroached into the setback. Upon further research, it was determined that a variance had not been granted for the existing porch encroachment. The applicant has indicated that he believed a variance had been secured by the builder, Brentwood Homes, for the porch encroachment. The applicant has further indicated that he believed the builder set the house back further from the street and front yard setback to save a tree on the lot. The tree is not indicated on the April 1, 1996, survey by ARC Surveying. The applicant has indicated that the tree has been removed. The survey by ARC dated April 1, 1996, indicates that the front yard setback has not changed from what was shown on the building permit site plan and the existing. The survey by ARC dated April 1, 1996, when compared with the survey submitted for the variance indicates that the front setback is what was requested by the builder at 31.3 and 31.5 A comparison of the two site plans (ARC Surveying, April 1, 1996, and applicant s exhibit) appears to show a larger screened porch was constructed than what was originally shown on the building permit site plan (ARC Surveying, April 1, 1996) Mr. Robertson showed the board members the site plan from the Building Permit file which staff requested through a freedom of information act, permit number dated June 6, Mr. Robertson stated the porch may be larger than what is there and the other site plan was not to scale. Mr. Robertson stated on the screen they have R-2 low density residential as stated and the map in question is in green and the aerial shows the parcel in question. Mr. Robertson stated a similar aerial was also included in their packet by the applicant and photos of rear yard and porch were shown which concludes the staff presentation. Mr. Smith asked Mr. Robertson which photo showed the house in question. Mr. Robertson indicated which photo showed the house. Mr. Moore asked Mr. Robertson if he would show on slid and photo. Mr. Smith suggested to Mr. Robertson it appeared the surrounding homes may be in question as it appears the homes are close to the rear setback. Mr. Robertson answered he was unsure. Mr. Smith stated the aerial photo appears to show some properties encroaching on the back but without a survey it could not be certain. Mr. Gwinnup asked Mr. Robertson about the staff report if everything here is prior and everything after this is current. Mr. Robertson answered in the affirmative. Mr. Gwinnup asked if that was the current permit situation and wanted to be certain that the ARC Surveying survey was for the original building proposed. Mr. Robertson answered that the ARC survey was for the one that is constructed. Mr. Moore stated that it appears that the house permitted and drawn by ARC Surveying is not the house constructed today was not built as it was permitted. Mr. Robertson answered that it appears that everything corresponds to the ARC Survey with the exception of the screened porch.

3 Page 3 of 9 Mr. Gwinnup suggested that it was 16x14 rather than 10x14. Mr. Robertson answered that he did not scale that off. Mr. Gwinnup stated he scaled it and the survey does not match what was built, which is a problem. Mr. Charles Dwyer reviewed his request with the board and stated that he bought a house that was not built correctly. He stated that they were not aware of this until they decided to build the deck. He stated the request is based on the fact that as a second owner, there was a reasonable expectation that the house was built to town regulations because it received a certificate of occupancy. Mr. Dwyer stated whether or not at that time it was the building inspector s responsibility to measure the setbacks or not he cannot say but as a property owner buying property it seems like a reasonable expectation that the certificate of occupancy would be an approval by the town that the structure is in compliance with what was proposed. He stated that he did not have a lot of time to investigate if it was in compliance or not as the market was moving quickly. He stated that the fact is the house with the screened porch that encroaches into the setback has a certificate of occupancy issued by the town. Mr. Dwyer stated that there are various reasons, such as the number of significant trees, that pushed the house back on the lot which evidently left no room for a screened porch. Eventhough the screened porch encroaches into the setback, he would like to get this situation resolved and on record to determine if the property value is impacted by the addition which existed when the certificate of occupancy was issued and whether or not he can build a simple deck. He stated that he is not asking for a two story addition into the setback and understands that according to the building code if he does not attach it to the house, he could have a floating deck under 1,000 square feet without needing a building permit. He stated that he could come out six feet away from his property line, put in a small deck and a pergola which would be similar to a shed but would rather not do that. Mr. Dwyer stated he feels the best way and most attractive use he can get out of his property is to build an attached deck a couple of steps down from his screened porch and attach it to the house. He has two conditions, one pre-existing condition that makes it an exceptional condition particular to his property and the other is the configuration of the lot. He stated that he does not have measurements of the properties, but they do not apply to them. He stated that the variance condition already existed for some 15 years and does not impact the environment and zoning and hopes the Board would consider these factors and grant a variance to get the issues resolved. Mr. Moore asked Mr. Robertson if he would comment on the two situations, one, with the existing condition and the other what the applicant would like to do. Mr. Robertson answered if it were existing and the zoning had changed so there was no setback and suddenly he has a 25 foot setback and this was at 21 feet it would be nonconforming. Technically, since it is built over the setback line it would be considered an illegal encroachment because there is no variance for it and there was nothing at the time that would have allowed the encroachment and the site plan showed it could be built within that setback. Mr. Robertson stated the building code, in regard to the certificate of occupancy is looking only at the building code issues. Since that time, they have hired someone to review construction before certificate of occupancy, but at the time there was no one who would have looked for that. Even if the building official chose to look the other way they would not have had the authority to grant that variance to allow that as it would be outside the scope of their authority. At this point the only encroachment is the screened porch by what appears to be less than approximately 4 feet according to the survey. Mr. Dwyer stated it is not a survey. Mr. Robertson stated you have an issue where the fence could be inside the property line, so there might be some additional room. Mr. Smith asked if you have a variance for a condition that already exists does that automatically imply that they can do anything else along the rest of the house or would you need a separate

4 Page 4 of 9 variance. Mr. Robertson answered that technically if there is a variance for a porch to encroach it with only for that porch and he would have to come back for the deck. Mr. Moore asked if two of the properties have been granted a variance or if there was record of any variances being granted on the street that he is aware of. Mr. Robertson answered that he has not seen a survey to any affect, but there is only one parcel being presented tonight that matters and that is what the applicant has presented to you. The applicant has not presented any surveys showing any other properties and if there were other properties that had encroachments it still would not mean that there was a hardship for this parcel. Mr. Gwinnup asked if the applicant is representing that this was the only property that had this setback situation within the neighborhood. Mr. Robertson answered he indicated that it was set back further from the street. Mr. Robertson stated in that instance if the builder set the house back the builder has created a hardship. Mr. Gwinnup stated the applicant submitted that the builder attempted to follow a generally uniform setback on the street front and pushed the structure back on this lot and there are five or six lots in that cul-de-sac area that the buildings were set back. Mr. Dwyer stated he was commenting more in general on the entire neighborhood than on his street in particular. Mr. Gwinnup stated he counted three other properties that were set back a considerable distance. Mr. Gwinnup stated the question is legitimate because the applicant has represented that this was an unusual situation for the neighborhood and is pointing out that he is not sure that is true. Mr. Gwinnup asked Mr. Robertson if the 1996 survey showed a smaller porch that would not encroach on the 25 foot setback. Mr. Robertson answered in the affirmative and added the ARC Surveying showed the porch which appears smaller than what was constructed. Mr. Gwinnup asked if in 1999 when the applicant purchased the property did he not get a survey for mortgage purposes. Mr. Dwyer answered in the affirmative and that is what was marked out that Mr. Robertson proposed. Mr. Gwinnup asked Mr. Dwyer if he submitted the actual survey or a copy of it. Mr. Dwyer answered that on his application package there was not a measurement in the back done, it was actually ARC that did that survey and that next time they only measured the front and sides. Mr. Gwinnup asked if he used that for mortgage survey. Mr. Dwyer answered in the affirmative. Mr. Gwinnup asked if that was the only difference between the original survey and the one he obtained from ARC in Mr. Dwyer answered when he purchased the house in 1999 this is the mark up that he had. He stated that he has erased parts of it and sketched his deck on it. He has one which is more of a survey and has added on his fence because he has built it since that time. When he purchased his house his mortgage survey did not measure the back setback. Mr. Gwinnup asked Mr. Robertson if the 25 foot rear yard requirement is part of the zoning ordinance now and if it was part of the zoning ordinance when this property built in Mr. Robertson answered in the affirmative. Mr. Gwinnup stated one of the issues represented is that this lot is different than the others in the cul-de-sac area and he questions if it is much different because of front yard setbacks, additional setbacks, and tree locations. Mrs. Smyly asked Mr. Robertson when they reviewed the file for a variance to determine if one was granted in 1996 what steps were taken. Mr. Robertson answered that they requested the file from the Building Inspections Dept. Ms. Smyly asked if the Board of Zoning Appeals minutes were reviewed. Mr. Robertson answered in the affirmative and that they could not find one by date, address or tax map number from He stated that they also confirmed that the R2 zoning was in effect at that time as well. Ms. Smyly asked would this be an attached accessory building. Mr. Robertson answered that the current screened porch would be considered an attached room onto the structure and would have to meet the setback. Ms. Smyly asked if it is possible that the screened porch could have been considered in any way an accessory building. Mr. Robertson answered in the negative, which is why it was shown in the survey to meet the setbacks. Ms. Smyly stated the

5 Page 5 of 9 current inspection seems to include a framing inspection, slab inspection and certificate of occupancy and her view is even if the inspectors were not formally required to measure for the setback it would appear that there would be some construction elements in that screened porch that would require some inspections for it; either foundation, slab, framing, electrical, heating or air conditioning and should have indicated if there was that much of a discrepancy. Mr. Robertson stated the foundation survey as reviewed by the building inspector would have to meet the requirements of the building codes not the zoning codes. Ms. Smyly asked at some point it seems that someone would have had the approved plans to compare the as built to the approved plan. Mr. Robertson answered the building code inspector measures for the building code and even if they did say they are aware of a setback violation they could not approve that violation. Ms. Smyly stated there is the likelihood an inspector that would have inspected the construction would have had to look at the plans, not for the setbacks but for the actual construction. Mr. Robertson answered in the affirmative and added there was a survey submitted that was submitted by the board by ARC survey that shows that the plans met the setback requirements that are noted on the plans. Mr. Gwinnup asked if the inspector would not have seen that the porch was enlarged from 10x14 to 16x14. Mr. Robertson answered it is not the requirement of the building inspector they are just for the code requirements. Mr. Gwinnup asked if they look for conformance with the plans. Mr. Robertson answered in the negative and added not for setbacks and believed it should have been done by the closing attorney. Mr. Gwinnup asked if they would inspect in reference to room size. Mr. Robertson answered in the negative and added that would not be a building code issue. Ms. Smyly disagreed and would be dismayed if a building inspector could inspect a building for all these requirements that are currently in place and not have noticed an expansion by more than 50% in one dimension. It would not involve the foundation. She suggested that the property owner is demonstrating reasonable reliance in that certificate of occupancy in that when the Town approves the CO it is done based on the current requirements. Generally the equitable estoppel has to be based on the official s action within their authority. But now we have this appeal where this Quail vs. Richland County that gives rise to an equitable estoppels argument even outside the official s authority and the applicant has relied on the CO in this event. Mr. Moore stated that is not disputing what Mr. Robertson is saying but knows in the past they had a case in which the brick steps were built and someone before the CO was granted from the town said these steps are in the setback and you cannot have them and is not sure how to dispute that. Mr. Robertson stated the town now has someone that inspects for setbacks because of these problems because they are not part of the building code. Mr. Moore asked Mr. Robertson on a planning and zoning perspective did he have a comment on Ms. Smyly s remark. Mr. Robertson answered that as an average citizen he would think that was the case, but unfortunately the law does not substantiate it. He stated they also had a closing attorney and the attorney should have caught the encroachment or been aware of it. Mr. Robertson stated if you are going to make a reliance argument then they also relied on someone else to do the research for them too that evidently did not find this. Ms. Smyly asked what the consequences would be if this continues as an illegal use and if the town will continue to assess a fine until the illegal use is remedied. Mr. Robertson answered they could but, it is uncertain what the remedy would be from the towns perspective. He stated that they could require compliance by removal of a portion of the porch or it could just be considered a noncomplying zoning issue that would be dealt with if the house were sold. Ms. Smyly stated she would find that if the variance is not granted we will have an illegal use in our hands because we found it is not a nonconforming use. If the Zoning Administrator or the Building Official fails to enforce the

6 Page 6 of 9 zoning ordinance on any person they can appeal that decision not enforced to us, which would be a vicious circle. She stated that there is case law with the Quail vs. the Town of Richland that contemplates equitable estoppels on the grounds of official action that is beyond the official s authority in that case. She feels they have an argument for equitable estoppels and would like to consider moving forward with two motions, one being the existing conditions and the other being the proposed construction. Mr. Gwinnup asked if there had ever been a blanket variance granted for the site for the rear yard requirement from 25 feet to 20 feet, reducing the rear yard requirement. Mr. Gwinnup stated this would cover the existing and the proposed. Mr. Robertson answered that is the request before them but the other issue mentioned earlier is how these came about and had there been a request to have an encroachment to save a tree may have been considered at that time, but that is not the case now as the house is presently built. It has been indicated that one of the reasons for the location of the current house was to save a tree which does not show up on the survey, but that does not necessarily mean the tree was not there. The tree may not have been required on the survey, may not have been a grand tree, but a photo of the tree was shown to the Board that was close to the existing house. Mr. Gwinnup stated it was a significant tree, by dimension it appeared to have been 12 to 15 inches in diameter. Ms. Smyly suggested that if this were to be enforced and the illegal structure was required to be removed, the applicant could seek a claim for reimbursement of damages from not only the Town, but there may be multiple parties that could be held responsible. Mr. Hollings asked Mr. Robertson if there is no reconciliation between what an inspector is looking at and what has been proposed on paper and are looking only for codes issues such as electrical and plumbing compliance before issuing a certificate of occupancy. Mr. Robertson answered in the affirmative and stated since Mr. Dwyer pointed out that they requested that they look at the building permit code. Only the ARC Survey has been referenced, but to see what was used Mr. Robertson distributed to the Board building permit number # issued June 6, 1996 and showed them the construction for compliance prior to the silt fencing being constructed on the lot. He also distributed the inspection card with notations on them, the footing inspection had comments on the rebar, June 11, 1996, garage slab July 9, 1996, Inspection for the plumbing, August 22 nd, electrical August 23 rd, insulation inspection September 16, a series of Sept, 6, 9 12 are mechanical and framing inspections, dated September 6, 9 and the 12 th and the certificate of occupancy. Ms. Smyly stated for the record the inspectors slips were numerous and do indicate inspector s remarks but do not indicate the actual inspection requirement as to what the inspector is required to inspect. Mr. Gwinnup stated when they inspect the footing they will look to the dimension of the footing, the depth, width and the amount of reinforcement and will most likely not have a building plan with him. Mr. Robertson stated there are alos the electrical inspection and the electrical final as well as the water and sewer inspection. Mr. Smith asked to see the picture slide of the back screen porch and stated the foundation footings are stucco. Mr. Robertson answered it appears to be contiguous with the house. Mr. Dwyer concurred. Mr. Smith commented he could see where the applicant has relied and had reason to rely on the closing process for the title research and the survey, etc and is comfortable that he

7 Page 7 of 9 demonstrates a hardship from the standpoint that this screened porch, even though it is encroaching into the boundary is not his fault and has gone through the steps he was expected to do to determine that. What he is not clear on is why they would allow him to create another hardship by building an attached deck. Mr. Moore stated it is clear to him that the porch is illegally situated in the setback. He stated that there is no reason to grant a variance for the deck and he cannot support the deck in any way because they have an illegal construction in the setback. Mr. Dwyer asked if the Town would issue a certificate of occupancy today with the building being in the setback. Mr. Robertson answered there is an inspector who is in charge of checking setbacks and should not allow it to go into construction. Mr. Dwyer stated he does not have the true evidence today but it his understanding the Town was aware of the encroachment during the construction process and therefore aware of it before the certificate of occupancy was issued. He stated that the deck would also encroach into the setback, but in the building code there are certain provisions. He stated that Town Council changed the zoning and moved the setback and if it had remained at 20 feet he would still be allowed to build as far out as he is proposing. He is not asking for anything more than what exists is just asking to go out to the same line, matching his structure with the way it is presently and sees the two issues being tied together. Mr. Gwinnup stated that contrary to what the applicant feels he was trying to address the case for a variance and went through the four requirements that the Board has to meet and in looking at the applicant s submission it appears some of it is reasonable. If he were looking to grant a variance from 25 to 20 foot setback for the rear yard for one lot, based upon what is presented the ownership, the fact that the previous owner built a porch that was non-conforming to the plan, it appears there were certain issues that would meet these extraordinary conditions pertaining to the particular piece of property. Mr. Moore asked Mr. Gwinnup to make a motion and state his argument. Mr. Gwinnup answered he would like to deliberate for awhile and asked if anyone on the Board felt the same way. Ms. Smyly pointed out again for the evidence that the certificate of occupancy states that the building having been inspected and is found to be in accord with the Mount Pleasant Building Code and other applicable regulations, so the certificate of occupancy itself segregates the building code specifically referring to compliance with the building code and other applicable regulations which the zoning ordinance she cannot imagine being anything else other than applicable regulations pertaining to development of property and finds further evidencing that the town has found the building to be consistent with the Town s regulations. Mr. Moore asked the Board if they were consistent and agreed that there are two issues here and to consider each separately. Mr. Gwinnup suggested that this could be handled with one motion and one variance for both situations. Mr. Moore answered he was comfortable with that and asked Mr. Robertson his opinion. Mr. Robertson answered the board could move forward either way; they could look at it and say they are going to adjust the rear yard setback or they can take each of those items individually or do both. Mr. Smith moved to approve the following findings of fact there are extraordinary and exceptional conditions it is evident that since the applicants purchased the home and having a survey and title search done they relied on the fact that the house was constructed including the porch as required by zoning ordinances that were in affect at that time and also that this condition does not generally apply to the other properties in the vicinity and they have not had this

8 Page 8 of 9 brought before the Board for anything else and does not apply to other houses that they are aware of and under because of conditions the ordinance disputes probably would prohibit or restrict utilization of the property by having to remove the porch or go through a process of trying to rebuild the house would be beyond what would be appropriate under these circumstances and that this would not cause substantial detriment to the adjacent property or the public good as it has been that way since 1996 without any observable problems. Mr. Moore asked if he heard him say that it is not a self imposed hardship. Mr. Smith answered in the affirmative and added the porch is not self imposed because it existed when they bought the house and they relied on the fact that the certificate of occupancy that was received from the Town and also the process of the title searches and survey. They did what they were expected to do and relied on information provided and did not put themselves into this situation knowingly. Ms. Smyly seconded the motion and amended the motion to include as part of the hardship the presence of the tree that has been evidenced not on the survey but on the photograph and is cited as a reason to have had the house pushed back on the property. Mr. Smith stated he did not have a issue with that other than the setbacks were appropriate and the footprint of the original house could have fit into the setbacks and so the tree was not material but did not have problem with it being in there. Mr. Smith seconded the amendment. Mr. Moore asked if Mr. Smith s finding of fact support the motion to allow the porch to remain. Mr. Smith stated last month there was discussion on having two separate motions, one on the finding of fact and then approval or denial of the request. If the motion for facts is not approved they do not have to worry about why they approve the variance. Mr. Moore called for a vote on the motion on findings of fact. All in favor. Mr. Smith moved to grant a variance for the setback for the porch as it currently exists. Ms. Smyly seconded. All in favor. Mr. Hollings moved to deny the application for the construction of the wooden deck with the finding of fact that the reference is a requirement for a rear yard setback. of 25 they cannot allow an encroachment into the 25 feet as they do not have the authority to allow that. Mr. Smith seconded. Mr. Moore stated that the variance would have to meet all four criteria and asked if they satisfactorily stated this in their discussion that it does not meet the criteria. The Board agreed that they sufficiently outlined in their discussion that the request did not meet the four criteria for a variance. Mr. Moore called for a vote on the motion. Motion passes on a 4 to 1 vote, with Mr. Gwinnup opposed. Mr. Moore reviewed the appeals process with the applicant and asked Mr. Dwyer if he had any questions. Mr. Dwyer stated he intended to fill out a building permit that shows his deck as an accessory structure not attached to the house.

9 Page 9 of 9 Approval of Final Orders Mr. Robertson stated that there were no orders to sign. There being no further business, Mr. Smith moved to adjourn at 7:15 p.m. Ms. Smyly seconded. All in favor. Submitted by, L. Lancaster BOZA