Minutes of 11/13/2007 Board of Adjustment Meeting [adopted] Matt W Burton on 01/08/2008 at 10:13 AM Category: Board of Adjustment Minutes MINUTES Regular Meeting Wake County Board of Adjustment Tuesday, November 13, 2007 9:00 am, Room 700 Wake County Courthouse 316 Fayetteville Street Mall Raleigh, North Carolina Members Present (7): Mr. Ronald Raxter (chairman), Mr. Art Odom, Mr. A. Thomas Anderson, Mr. Billy Myrick, Mr. James Compton, Mr. Gary Shope, and Mr. Terence Morrison. Members Not Present (2): Mr. Tim Sack and Mr. Jeffrey Willis. Staff Present (5): Ms. Brenda Coats (Planner II), Mr. Steven Finn (Land Development Administrator), Mr. John Schodtler (Planner II), Mr. Russ O Melia (Assistant Secretary to the Board), and Mr. Matt Burton (Secretary to the Board) County Attorney Present: Ms. Shelley Eason (Deputy County Attorney) Board of Commissioner Member Present: Ms. Lindy Brown Item 1, Call to Order: Mr. Raxter called the meeting to order at 9:07 A.M. with seven (7) members present. IN RE MINUTES Item 2, Approval of Minutes of the October 9, 2007 Meeting: Mr. Odom made a motion to approve the October 9 meeting minutes as written, and Mr. Myrick seconded. The motion carried unanimously.
Chairman Raxter stated for the benefit of anyone in the audience who had not attended a meeting of the Wake County Board of Adjustment, that the meeting is a quasi-judicial proceeding. Anyone wishing to present testimony and/or evidence will be asked to come forward and be sworn or affirmed. The petitioner will be given the first opportunity to present testimony and/or evidence. Anyone wishing to speak in favor or opposition will present testimony and/or evidence. The petitioner will then be given an opportunity to respond. Planning Department staff members John Schodtler and Brenda Coats were duly sworn. Item 3, BA-V-2085-07 (Item presented, and tabled, at the last meeting) Petitioner: Zack Starritt Landowner: John W. and Cynthia Baldwin PIN: 1820.02.57 4653 Size: 1.88 acres Location: The site is located at the northeast intersection of Green Hollow Court and Shady Hill Lane, north of Old NC 98 Highway. Zoned: Residential 80-Watershed (R 80-W) Land Use Classification: Non-Urban Area/Water Supply Watershed (critical area) The petitioner is requesting a 13.9-foot variance to allow the existing garage to remain within the required 40 corner yard setback and an 18-foot variance to the maximum 10-foot length of the breezeway. SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, Ortho Map, Zoning Map, relevant sections of the Unified Development Ordinance, and a panoramic video documentation of the landowner s home, breezeway, and garage. Testimony: Ms. Coats, Planner II, entered the staff report for BA-V-2085-07 into the record and stated the petitioner s name, address, zoning classification, and the nature of the variance request. Ms. Coats used a PowerPoint presentation to identify the location of the property on an Ortho and Zoning map. She noted that this item was heard at the October meeting and tabled to give the petitioner a chance to produce and provide additional documentation and information to support his case. PLEASE REFERENCE THE ADOPTED MINUTES FROM THE OCTOBER 9, 2007, MEETING FOR THE TEXT OF THE STAFF REPORT PRESENTED, WHICH WAS THE SAME PRESENTATION MADE AT THIS POINT IN THE RECORD. Before hearing from the petitioners, Mr. Raxter said that the voting members for this variance would be the four regular members present and Mr. Shope. Mr. John Baldwin, the landowner and licensed builder/owner of Baldwin Homes, and Mr. Zack Starritt, project superintendent, came forward, and after stating their names, were duly sworn in. Mr. Baldwin said either mistakes were made, or he intentionally, deceitfully put his garage
in the wrong place, which as a professional builder knowing surveys would be done, he would never do. He continued that there was no reason for him to put the garage in the wrong place, but if he had, he would not have invited the county to do an inspection. He used the example of the gas company requesting a Certificate of Occupancy for the garage. He would not have risked erecting a $150,000 garage to save $500 or $1,000 for a gas permit. He acknowledged when he submitted plans for the house, he and his wife planned on building a garage at some point. Mr. Baldwin said the county has posted the wrong plot plan on the presentation board, because it does not show the driveway, the pool, and other things. He submitted that it is the original plan for the house with a place for a proposed garage because he and his wife wanted to make sure they had enough money to complete the house before building the garage. When he found out he would have enough money, he returned to the county to secure a permit for the garage and was told to do five things: draw everything to scale at ten feet; show the framing on the breezeway; draw the pool in; list the impervious surfaces; and draw the pool deck in. He and Mr. Starritt went back and drew in all these requirements on their plot plan, and returned the revised plan to the county. He suggested the county might have misplaced this revised plan. On September 21, 2006, Cynthia Baldwin went to the county offices and received the permit. They believed there were two permits, and did not know it was all on one permit until the concern arose. Wakefield Development Corporation approved the plot plan on October 7, 2006. He built the garage, called for an inspection, which failed. The building inspector came, inspected the footings, and suggested several corrections, which Mr. Baldwin made and the engineer signed off on the fixes. Then a framing inspection was done. The county has no record of these inspections, just as they have no record of the correct plot plan submitted. He admitted that it appears the garage was built in the wrong place according to county guidelines, but he stressed again that he nor Mr. Starritt had no knowledge of this and did not build it incorrectly on purpose. Mr. Baldwin then submitted two notarized letters from two of his neighbors (Tripp and Stephenson appendix A) in support. He said the board should have copies of Wakefield Development Corporation s plot plan approval. He then said while at the last meeting he suggested he may have turned in the wrong plot plan, he now feels he turned in the correct plan and the county lost or misplaced it. Mr. Starritt came forward and simply stated that he confirms everything Mr. Baldwin said was accurate. Ms. Coats asked if indeed Mr. Baldwin thought the garage was on a separate permit. Mr. Baldwin said yes, that he went to get a separate permit, but understands the county put the garage on the same [house] permit. Ms. Coats presented a copy of the permit application, completed and signed by Mr. Starritt, on which existing use amend to add garage was selected, and on this amended permit was picked up and signed for, by Mrs. Baldwin, on September 21, 2006. Ms. Coats suggested there was knowledge along the way that the garage would be on an amended permit. Mr. Baldwin replied that he came in and applied to get permission to build the garage, but that he did not know whether it was a new or amended permit. Mr. John DiPietro, county building inspector, came forward, and after stating his name, was duly sworn in. His first encounter with this site when was he was asked to do an inspection of the garage footings, and found Mr. Baldwin did not have an approved site plan. He was told there was no site plan, but had a surveyor locate the garage. Based upon this information, he performed the footing inspection on September 29, 2006. The inspection failed because some interior lug footings in the stairwell were not excavated, and Mr. Baldwin did not call for another inspection on the garage. On October 31, Mr. Baldwin called for final inspections to the house, to which Mr. DiPietro went out three times to the location. At this time, as a courtesy, not documented, he walked through the garage with Mr. Starritt and pointed out some anomalies the engineer should address. He could not do a framing inspection because the trade inspections had not yet been done, although he acknowledged it is possible they
could have called in a framing inspection, although the county system does not discriminate between a house and a garage inspection. At the final house inspection, he asked Mr. Starritt about the garage, to which Mr. Starritt replied the goal is to secure the Certificate of Occupancy for the house for the Baldwins to move in, and the garage would be finished later under a separate permit. He said he trusted Mr. Starritt from working with him, he did not read through all the notes, and consequently did not see that the garage was under an amended permit. Mr. DiPietro said he would not sign off on a house when a garage or any breezeway was not completed, if he knew the garage was under an amended permit. He spoke with Mr. Baldwin on March 13 about the problem with the garage, explained to him that a framing inspection could not be done because the system said the permit was completed. Only after checking the permit number, and reading through the notes, did he discover the garage was an attached garage. Mr. Raxter asked if the only way the house permit could have been amended is if the garage was an attached garage. Ms. Coats said yes. Responding to Mr. Shope s question, Mr. DiPietro said that he never saw an approved site plan, which would have shown the garage as either attached or detached. He took Mr. Starritt s word, because he has worked successfully with John Baldwin homes for over ten years and that the surveyor had located the garage based upon the site plan, and operated under the assumption that the garage was detached, whereas in fact the garage is attached. Mr. Myrick asked if when Mr. DiPietro put his note in the inspection box after the footing inspection, did he put the note in the house box or the garage box. Mr. DiPietro said there was only one inspection box. Mr. Myrick asked if at that time, was the house footing inspection already done. Mr. DiPietro said yes, that was completed in March, and reminded the board that the garage footing inspection had the same permit number as the house because of being an amended permit with an attached garage. A Certificate of Occupancy would not be approved for a house if an attached garage was not finished. All work under one permit must be completed prior to the issuance of this certificate. During the September footing inspection, there was no evidence or no indication that a breezeway was going to be built to connect the house and the garage. Mr. Anderson said the issue is not whether the garage is attached or detached, but rather it is the setback issue and that the footings were poured in the wrong location. The setback should be 40 feet, but at one end of the garage the setback is 31 feet and at the other it is 37 feet. Mr. DiPietro said in most cases he would check the setbacks when he has an available site plan. In this case he did not, but based upon years of trusted working relationships with the builder, he did not want to hold the project up and took their word that a surveyor had located the garage. He did not authorize the pouring of the footings, but the builder poured them anyway. Mr. Odom reminded the board that in some parts of the neighborhood the setbacks are 20 feet and in others they are 40 feet. Unless the county informs the builder the setback is 40 feet, the builder may assume the setback is 20 feet. He continued that if Mr. DiPietro believed the garage was under a separate permit, why did he not notice there was no second inspection box. Mr. DiPietro responded that much of an inspector s job is building relationships with builders based on trust, and by the time an inspector gets to a building final inspection, the inspection box may be gone, relocated to a garage, or other storage location. Ms. Eason said under Section 19-26 of the Unified Development Ordinance (UDO) the first test the property owner has to meet to have a variance approved is that there are special circumstances that apply to the building which exist through no fault of the property owner. It does not require intentional deceit in order for there to be fault on the part of the property owner. There can also be negligent fault, meaning there is a reasonable standard of care to which the property owner must adhere. As an experienced builder, Mr. Baldwin can be expected to make reasonable inquiries as to the status of his permit and not make statements to inspectors that could potentially mislead them.
Mr. Raxter asked if Mr. Baldwin needs a CO for the garage. Mr. DiPietro said he should not be using the garage at all. Mr. Raxter said assuming a variance is granted, would Mr. Baldwin have to ask the county for a CO for the garage. Mr. DiPietro said yes, because an inspection process would need to be started on the garage and on the breezeway. Ms. Coats said if the board approves a variance, the petitioner must obtain the appropriate permits and inspections for the breezeway and garage, and a Certificate of Compliance must be issued within sixty days of the issuance of the required permit. She continued that a breezeway is defined as being enclosed and inhabitable. To be an attached garage, it would have to be a breezeway no more than ten feet in length and a minimum of five feet in width. Mr. Baldwin simply has a covered walkway with no walls, and as such is considered a detached garage. A detached garage cannot be any closer to the right of way than the existing structure. The site plan shows the house at 41.9 feet from the right of way, and no part of the garage can be any closer to the right of way than that, which was a change in the UDO. So if a variance is granted, this problem still exists. Mr. Compton said it appears all parties thought there were two permits. Mr. DiPietro said that Mr. Baldwin was using the same permit number for over a year, yet called back a framing inspection on the garage, on the house permit, after the CO was granted and they moved into the house. If the garage issue was brought to his attention at that time, the CO would not have been issued. Mr. Compton asked if in the ten years of experience with Baldwin Homes, have they tried to build a garage on a separate permit or on the same permit. Mr. DiPietro said he could not recall, but he never had a problem trusting them. Mr. Myrick asked if he has ever seen, in the county system, two permits for this lot. Mr. DiPietro said no, and at the housing final inspection, the garage framing was up, but no attachment to the house was made, and Mr. Baldwin told him the garage was under a separate permit. He looked at one county system screen and not the second one, out of the years of trusted relationship with the builder. Mr. Baldwin noted that on the original approved plot plan on the presentation wall, staff approved that plan on which the garage is shown as being one foot closer to the road than the house, and contended that the plan on the wall is the one submitted for the house and not the garage. Ms. Coats said this was because the permit was amended for an attached garage. She said at the October meeting, the petitioner said he had a copy of the stamped, approved site plan showing the 20-foot setback. Mr. Baldwin said he did not contend that, but that he had a copy of the plan stamped by Wakefield Development Corporation that was approved. Ms. Coats said this corporation does not enforce the zoning in the county. She said the county never had an application for a detached garage, but the house permit was amended for an attached garage. Mr. Compton asked what Mr. Baldwin could do to make the garage attached. Ms. Coats said whatever happens, the garage still does not meet the 40-foot, corner-yard setback, but he could erect a connection or build something to make it attached. Mr. Baldwin said from his house he can see three breezeways at neighbor s homes that are longer than his. Mr. Anderson said these structures are covered walkways. Mr. Compton asked Mr. Baldwin if he typically builds homes with garages with two separate permits. Mr. Baldwin said it varies and has varied in his experience, and while he has done many with separate permits, he cannot remember doing an amended permit. It was not unreasonable to assume that Mr. Starritt thought the garage was under a separate permit. Mr. Myrick asked if a surveyor did the plot plan. Mr. Baldwin answered yes, and that both he and the surveyor were under the impression that there was a 20-foot setback on the side. He had the plan showing 31 feet that he thought the county had approved. Mr. Myrick asked if he paid for a separate permit. Mr. Baldwin answered he thought so, although it turned out to be an amended permit. Ms. Coats asked if Mr. Baldwin came back with an approved site plan, because the county does not have a copy of a stamped, approved site plan for the amended permit. Mr. Baldwin said he does not have in his records an approved, stamped plot plan dated when the permit was picked up. Ms. Coats asked if it
was possible Mr. Starritt came in with the site plan showing the 31 feet that was mistakenly picked up. Mr. Starritt said it was possible and apologized to Mr. DiPietro for any confusion and any miscommunications. There was no one else that wished to speak in favor of the petition and no one spoke against the petition. Mr. Raxter then closed the evidentiary hearing. BOARD DISCUSSION Mr. Raxter and Mr. Odom asked if the variance is granted, is the board going to require him to enclose the breezeway. Ms. Coats said yes, Mr. Baldwin will have to ensure the structure meets the conditions of a breezeway by enclosing it, get a permit for the breezeway and garage, get the inspections done, and a CO on it, and any other conditions the board wishes to add. MOTION Mr. Myrick made a motion that in the matter of BA-V-2085-07, the board find and conclude that the petition does meet the conditions required in Article 19-26 of the UDO and that the variance be granted to the degree necessary to correct the violation with the recommended staff conditions. Mr. Anderson seconded the motion. Mr. Anderson asked to amend the motion with the condition that four shade trees be planted as a mitigating item along Shade Hill Lane, two inches in caliber, fifty feet apart. Mr. Compton asked with this amended motion, does the landscaping have to meet any county code. Ms. Coats said it is at the board s discretion, but county staff will have to verify the trees have been planted. Mr. Shope seconded the amendment. Mr. Raxter, Mr. Myrick, and Mr. Odom voted no, and Mr. Anderson and Mr. Shope voted yes. This resulted in a 3-2 vote to deny the amendment. As to the original motion on the table, all voting members voted in the affirmative. This resulted in a 5-0 vote to approve BA-V-2085-07. The variance was granted and approved with the following conditions (recommended staff conditions): The petitioner must record the notarized form pertaining to the order of the Board in the Wake County Register of Deeds and return a copy to the Current Planning Section of the Planning Department. The petitioner must obtain the appropriate permits and inspections for the breezeway and garage. A certificate of compliance be issued within 60-days of the issuance of the required permits. So ordered. There was a break in the proceedings at 10:20 A.M. Mr. Raxter called the meeting back to order at 10:30 A.M.
Item 4, BA-V-2084-07 Petitioner: William Pendley Landowner: William and Mary Pendley PIN: 0780.03-10-5188 Size: 2.0 acres Location: The property is located on the north side of Ten Ten Road approximately 550 feet west of Johnson Pond Road. Zoned: Residential 40-Watershed (R 40-W) Land Use Classification: The site is located within the Non-Urban Area Long Range Urban Service Area (LRUSA) and the Non-Critical Swift Creek Watershed Area. The petitioner is requesting two (2) variances to allow an existing detached accessory building to remain within a 5-foot accessory structure side yard setback and to allow the accessory structure to exceed the square footage of the primary structure by 667 square feet. SYNOPSIS OF TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, Ortho Map, Zoning Map, relevant sections of the Unified Development Ordinance, and a panoramic video documentation of the landowner s home and accessory structure. Testimony: Mr. Schodtler, Planner II, entered the staff report for BA-V-2084-07 into the record and stated the petitioner s name, address, zoning classification, and the nature of the variance request. Mr. Schodtler used a PowerPoint presentation to identify the location of the property on an Ortho and Zoning map. Section 4-61-1(C) Accessory Uses and Structures, General, which states the total floor area of all accessory buildings combined may not exceed the total floor area of the main building. Section 4-61-1(D) Accessory Uses and Structures, General, which states accessory buildings must be set back at least 5 feet from any side or rear lot line. The petitioner is requesting two (2) variances at 6613 Ten Ten Road (PIN#0780.03-10-5188) located on 2.0 acres in the Residential 40 Watershed (R-40W) District. q The first request is to allow the 3,085 square foot detached accessory building to exceed the square footage of the primary structure (2,419 square feet) by 667 square feet. The petitioner requests a variance from the following section: 4-61-1(C) Accessory Uses and Structures, General, which states the total floor area of all accessory buildings combined may not exceed the total floor area of the main building.
q The second request is to allow an existing detached accessory building to remain within a 5-foot accessory structure side yard setback. The southern most portion of the building is located approximately at a zero-foot setback and 2.1 feet at the northern most portion of the building according to the survey/site plan submitted with the variance application. The petitioner requests a variance from the following section: 4-61-1(D) Accessory Uses and Structures, General, which states accessory buildings must be set back at least 5 feet from any side or rear lot line. A building permit application was submitted on November 16, 1989 for a 26-foot x 28- foot attached garage. The permit was completed on February 18, 1991. Our research indicates that the existing detached accessory building (see aerial above and photographs attached hereafter) itself did not have a building permit. The approximate building height of this building measured from the ground to the peak of the roof is 15-foot, 4- inches. This demonstrates compliance with the definition of building height as required by the Unified Development Ordinance (UDO), which reads as follows: Building height refers to the vertical distance measured from the mean elevation of the finished floor at the front of the building to: (A) the highest point of the roof surface on a flat roof; (B) the deck line of a mansard roof; or (C) the mean height level between eaves and ridge for a gable, hip, or gambrel roof. On June 18, 2007, a complaint was received from a neighboring property owner indicating construction was occurring without a permit (area in red on aerial above). The work included a bathroom addition to an existing detached accessory building. The main concern was the setback from the side property line and water runoff from the building onto the neighboring property. On June 19, 2007, a Fire Safety inspection was performed and resulted in a determination that the building is of residential nature and not applicable to the Fire Code. The owner received a Notice of Violation letter on June 22, 2007 for the construction that had taken place without the appropriate permits and inspections. On June 22, 2007 the complainant indicated that the construction had continued. On June 29, 2007, planning staff met with the applicant (Mr. Pendley) about violations and provided direction on how to proceed. July 23, 2007, the applicant submitted this application for variances. The Development Review Staff (DRS) reviewed the application and requested additional review comments be addressed on September 14, 2007. The responses to the DRS comments were received on October 17, 2007. Notification letters to adjoining property owners were mailed on October 22, 2007. A public hearing placard was placed on the site on October 23, 2007. The Board of Adjustment shall not approve a petition for a variance unless it first reaches each of the following conclusions based on findings of fact supported by competent, substantial, and material evidence. The Board of Adjustment must make positive findings on the following findings of fact from Article 19-26 in order to approve this variance request: (1) There are special circumstances or conditions applying to the land, building, or use referred to in the application, which exists through no fault of the property owner. (2) The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. (3) The granting of the variance will not have a material adverse affect to the health or
safety of persons residing or working in the neighborhood of the proposed use, and will not be materially detrimental to the public welfare or injurious to property or improvements in such neighborhood. (4) A denial of the application would cause practical difficulties or unnecessary hardships to the landowner. Staff recommends that, if the Board of Adjustment makes positive findings on all of the required findings of fact and conclusions, that it approve the requested variance, subject to the following conditions: 1. The petitioner must record the notarized form pertaining to the order of the Board in the Wake County Register of Deeds and return a copy to the Current Planning Section of the Planning Department; 2. Prior to the issuance of any building permits, an application for verification of wastewater system (and well) needs to be made to Wake County Environmental Services to assure that the construction does not impact these facilities and conforms to applicable regulations; 3. Prior to the issuance of any building permits, provide a Stormwater plan that retains the first ½ of rainfall; 4. That any portion of the building overhanging a property line be removed; and 5. That storm gutters be placed on the east side of the detached accessory structure and down spouts provided to direct water flow away from adjacent properties. Mr. Compton asked what the stormwater control device would be. Mr. Schodtler replied the recommendation came directly from the county stormwater staff. Before hearing from the petitioners, Mr. Raxter said that the voting members for this variance would be the four regular members present and Mr. Compton. Mr. William Stewart Pendley, the petitioner, came forward, and after stating his name, was duly sworn in. Mr. Pendley apologized for any inconvenience and any time wasted, as he did not secure a permit for his building. He said his neighbor waited for two months after the structure was completed before filing a complaint with the county. Mr. Raxter asked if he knew he was building right up to the property line. Mr. Pendley answered no, he thought he was 15 inches off the line, but in the front it is 5 inches off and in the rear it is 26 inches off. The roof overhang is 7 inches over the property line. Mr. Compton asked if he was aware that he needed a permit for this building. Mr. Pendley responded that he did not think he needed one to build onto his existing structure, but understood he does need one. Mr. Compton asked if he was aware of any setback requirements with regard to erecting the building right up to the property line. Mr. Pendley said his brother, in a similar situation on another property, was told he could build right up to the property line, and he believed this to be true for his own property. He continued that Ms. Coats told him this requirement was changed six years ago. Mr. Shope asked if he had a survey done on the addition. Mr. Pendley said the county required him to have one done. Mr. Myrick asked if the petitioner understood what the county would be requiring him to do if the variance is granted, and if he would fulfill these requirements if approval were granted. Mr. Pendley said yes, that he would have to cut back part of the roof, put gutters up, and install a silt pond to catch stormwater runoff. Mr. Compton cautioned him that the stormwater measure could be an expensive fix, perhaps more expensive than removing the building, and urged Mr. Pendley to look at all options and the total cost of what he would be required to do with an approved variance.
Mr. Doug Jones of 551 Competition Road, came forward to speak in opposition of the variance request, and after stating his name and address, was duly sworn in. He said he owns two lots across from the petitioner s property, and is building a residence at 6608 Ten Ten Road. The building in question is about 150 yards from his residence. During his construction process, he was cautioned that he had to secure a permit for any out building, and that there was a ninety percent chance he would not be able to secure a permit, and he put a basement in his residence just in case this were to happen. He knows of two other neighbors who applied for out building permits who were turned down. He has three issues of concern. One, is the land value issue. If Mr. Pendley s variance is granted, his property value will increase whereas the other neighbors who have been denied permits will not have the same fairness in property value increase. Mr. Jones said he would like to build an out building someday to have a side business during retirement, but he may not be allowed to build it, and consequently, his land value will not have the same opportunity for increase. The second issue is precedence. If Mr. Pendley is granted a variance, other neighbors will want and expect one, too. The third issue is that a building exists now that has not been inspected. He expressed concern over the soundness of its structure, or if it is up to fire code. He believes there are rights granted to homeowners in the code to protect them from these questions and concerns. He said if a variance is granted, he expects the board to ensure that the structure meets all codes. Mr. Jones then pointed out where his home is located on the presentation wall map. Ms. Wanda Settle of 6637 Ten Ten Road, Apex, came forward to speak in opposition of the variance request, and after stating her name and address, was duly sworn in. Ms. Settle began by saying she did not wait until Mr. Pendley s building was finished to contact the county. She corrected the handout, which stated she first made contact on June 18, 2007, when she first contacted the county on February 22, 2007, and spoke with Joe Mangum. Mr. Mangum informed her that he was leaving the Planning Department, projects were running three weeks behind schedule, asked for her patience, and said a letter would be sent to Mr. Pendley within four weeks. On March 7, 2007, she faxed a second letter of possible zoning violation to Keith Lankford, who had spoken with her, and offered his assistance though stating he did not work in that particular area of the Planning Department and was simply filling in. Thirty-five business days from the original fax letter, Ms. Settle called and spoke with Mike Walters, who also said he did not work in that particular area of the Planning Department, that he was filling in until staff could be hired, but would see Mr. Pendley received his letter, who would have thirty days to respond to the letter. Ms. Settle said no action was taken and no letter was sent. On May 31, 2007, she faxed the letter to Ms. Coats, who was very helpful. Ms. Settle explained leaving a voicemail for Ms. Coats expressing concern about the possibility of any family relation between Ms. Coats and Mr. Pendley s family, as Mr. Pendley s sister is married to a Coats. Ms. [Celena] Everette and Mr. Finn called Ms. Settle back the next day, were very helpful, thanked Ms. Settle, and asked for her patience. Ms. Settle argued that Mr. Pendley knew he needed a permit because she and her husband informed the Pendleys many times of the troubles they [Settles] had securing a permit. She alleged that he responded if no one can see the structure, no permit should be required. She said she has made every effort to be respectful of property lines and used an example of a soil survey she had done during which the contractor asked the Settles to clearly mark their property line. They did so with an orange weed-eating line. She alleged at some point they observed Mr. Pendley cutting the property line string. She then detailed several other examples of disagreements between the two families over the property line as the Settles erected a fence. She said Mr. Pendley invited her over to see a sunroom he had built attached to his home, and she asked him if he had a permit, to which he allegedly responded no, but he built it to Wake
County codes, if not better. She noted that Mr. Pendley has a lean-to on the back of his existing two-car garage that he could have easily enclosed rather than build a new structure that encroached on the Settle s property. She produced pictures of this for the board and said he did not have a permit for the lean-to, although he did later enclose it. She produced a letter from Robertson and Plant surveyors, which flagged the property line, and drew a map showing the encroachment of Mr. Pendley s building across the Settle s property line. She said she informed Mr. Pendley while the building was being constructed that he was encroaching over the property line, and they put up No Trespassing signs. She produced pictures showing various contractors trucks present during construction of the building. She noted that Mr. Pendley had two trailer buildings in approximately the location of the building in question, and the Settle s planted cedar trees to block the view. In July 2006, the Pendleys invited the Settles over for a Fourth of July celebration. She alleged that Mr. Pendley told her he tried to secure permits to construct the building, but was unsuccessful and hired an attorney to see if a permit could be secured through legal means. Ms. Settle said that either did not happen or Mr. Pendley did not tell the truth, but the digging and construction began a short time later. She said her heart does not want to see the building come down, but in her head she feels it should. She said that her family has been denied a variance in the past, and with the encroachment onto their property, she feels Mr. Pendley should not be awarded a variance. She acknowledged that the Pendleys had been robbed in the past, and this may have been a reason to consider building a more secure building for his collector cars, but she maintained they did not need to construct a building as the Pendleys had room in other places for their valuables or if they had enclosed the lean-to. She concluded that he should at least be required to move the building back. Mr. Anderson asked if she would be willing to sell a ten-foot strip to alleviate the problem. Ms. Settle said no because the county may require that a gravel road be built on her mother s property, adjacent to Mr. Pendley s property, in order to gain proper access to the site, and if this strip of land has to be released, they don t want to lose any more land by selling some for this case. Mr. Pendley came forward for rebuttal and expressed disagreement with many of Ms. Settle s remarks. He noted that he has planted Leyland Cyprus trees down the property line now to better identify it. He said he did have a permit for the existing garage, and never applied for a permit to add onto the garage and did not hire an attorney. He said he knew he was wrong for building without a permit, and he said he would be glad to cut his overhang back and put a gutter on it. Mr. Compton asked if Mr. Pendley secured a permit for the sunroom, and if he indeed had a permit for the existing two-car garage that he added onto, because the county has no record of it. Mr. Pendley responded that he did not get a permit for the sunroom because he thought he did not need one. He said he believed he had one for the existing garage and would have to look for it in his records. He told the board that he has lived at this location for 24 years. Mr. Myrick asked if there was any way either side could settle their differences. Mr. Pendley said he has always helped the Settles, and that he feels he has done nothing wrong and does not know if anything can be done. He said the code required him to build walls with 2 x 4 studs, but he used 2 x 6 studs for an extra level of stability. There was no one else that wished to speak in favor of the petition and no one else to speak against the petition. Mr. Raxter then closed the evidentiary hearing. BOARD DISCUSSION
Mr. Myrick asked if the Settles would sell him the ten feet, would it be possible for Mr. Pendley to give them an easement on the ten feet to use as a road. Ms. Coats said at the time the road would be put in, there would be a violation as to the setback for the road. Mr. Compton said it appears Mr. Pendley has flagrantly built numerous structures on his property without permits over many years, and cannot see how the board can say the violation was through no fault of his own. Mr. Raxter said that concern addresses issue one, special circumstances. MOTION Mr. Odom made a motion that in the matter of BA-V-2084-07 that the board find and conclude that the petition does not meet the requirements of Article 19-26 of the Wake County Unified Development Ordinance because the board cannot find that this violation exists through no fault of the petitioner, that the petitioner failed to secure a permit, and that the petitioner failed to observe setback lines. Mr. Anderson seconded the motion. Ms. Eason confirmed the legality of the way the motion was worded. Mr. Raxter, Mr. Odom, Mr. Anderson, Mr. Compton voted for the motion, and Mr. Myrick voted against the motion. This resulted in a 4-1 vote to deny BA-V-2084-7. The variance was denied. So ordered. ITEM 5, NEW BUSINESS There was none. ITEM 6, OLD BUSINESS There was none Hearing no additional business, the meeting was adjourned at 11:50 A.M.