MINUTES Regular Meeting Wake County Board of Adjustment Tuesday, February 10, 2015 9:00 am, Room 2700 Wake County Justice Center 301 S. McDowell Street Raleigh, North Carolina Members Present: (6) Mr. C. Arthur Odom, Mr. Billy Myrick, Mr. Tim Clark, Mr. Trenton Stewart, Mr. Will Barker, and Mr. John Barker Members Not Present: (3) Mr. Brenton McConkey, Mr. Blake Cason, Mr. Terence Morrison County Staff Present: (10) Ms. Brenda Coats (Planner II), Mr. Steven Finn (Land Development Administrator), Ms. Stacy Harper (Planner II), Mr. Chris Record (Planner I), Ms. Kathryn Hobby (Environmental Engineer), Mr. Frank Cope (Community Services Director), Mr. Jim Roberson (Inspections Supervisor), Mr. Darrell Alford (Deputy Fire Marshal), Mr. Tim Maloney (Planning, Development & Inspections Director), and Mr. Russ O Melia (Clerk to the Board) County Attorney Present: (1) Mr. Ken Murphy (Assistant County Attorney) Item 1, Call to Order: Mr. Odom called the meeting to order at 9:00 a.m. with 6 members present. Before the cases were heard, Wake County staff members Ms. Coats, Ms. Harper, Ms. Hobby, and Mr. Finn were duly sworn. IN RE MINUTES Item 2, Approval of Minutes of the December 9, 2014 meeting Mr. Clark made a motion to approve the December 9 th meeting minutes, and Mr. Myrick seconded. The motion carried unanimously. Item 3, Approval of Written Decision Granting Special Use Permit in the Matter of BA SU-2200-14 The written decision was approved by unanimous consent. Item 4, BA V-2203-14 Voting Members: Mr. Odom, Mr. Myrick, Mr. Clark, Mr. Stewart, and Mr. John Barker Landowner: Douglas and Elizabeth Spero Petitioner: Doug Spero PIN#s: 0880 82 5184 Size: 0.94 acres Location: The property is located at 6208 Trevor Court in Phase 2 of the Saddleridge Subdivision. Zoned: Residential-40 Watershed (R-40W) Land Use Classification: Non-Urban Area Water Supply Watershed (NUA WSW) The applicant is requesting a variance to allow the house and associated appurtenances such as the steps and porch, to encroach 20 feet into the water supply watershed buffer and 20 feet into the required 20 foot building setback.
TESTIMONY AND EVIDENCE PRESENTED Documentary Evidence: Staff report, PowerPoint presentation, Application, survey dated November 28, 2014, subdivision plat for Saddleridge Phase 2, photos, video, and relevant sections of the Unified Development Ordinance were shown and/or available. Testimony: Ms. Harper, Planner II, entered the staff report and PowerPoint presentation for BA-V-2203-14 into the record, and stated the petitioner s name, zoning classification, background and history of the petition. The home at 6208 Trevor Court was built in 1994 and the applicant, who is the third owner, purchased the home in 2004. The encroachment into the buffer and setback was discovered after a survey was commissioned by potential buyers of the property. The current owners submitted the variance application on December 5, 2014. The water supply watershed buffer requirements and corresponding building setback requirement was adopted in 1986 and all lots created after this time were required to show both the buffer and the setback. On the recorded plat for the portion of Saddleridge subdivision, the water supply watershed buffer is clearly marked. The building setback is not clearly labeled on the plat, though there is a note on the plat stating no building shall be permitted within 20 feet of a drainage way buffer. The site plan commissioned by the potential buyer and subsequently submitted as part of the variance application shows a change in the stream, the stream buffer and corresponding 20 foot building setback which encroaches further north within the lot. The change in the stream buffer has resulted in the home being located within both the water supply watershed buffer and required building setback. Staff compared the recorded plat with the survey. Since the home was not shown on the recorded plat, measurements were approximated. Staff concluded that when the home was originally built the porch, steps and walkway were likely within the setback but not within the buffer. Plot plans for the original construction of the home are not available given the age of the home and the state s record retention regulations. The finished floor elevation was certified as a part of the building permit process when the home was built. That elevation certification confirmed the home at 317.43 Feet, which is above the 100 year flood elevation stated the plat. The buffer is one safety tool to ensure the home doesn't flood but the flood certification process is more definitive. Mr. Clark asked if historical aerial photographs exist of the property. Ms. Harper stated that the property is heavily wooded. The stream is not a flowing stream, so it is difficult to tell how it has changed over time. Sworn witness in favor of the petition: Doug Spero, 8609 London Park Court, Raleigh, NC 27615 Mr. Spero submitted Exhibit 1: four photographs of the stream. Mr. Spero testified that there were no issues with the property when he purchased it in 2004. The house was built 21 years ago, and the stream has not moved an inch since the house was built. The bridge has always been there, and the water flows at the lowest level. There is a decline on both sides, and water flows to the lowest point. He said that the current conditions of the stream are the same as when he purchased the home in 2004 and when the house was built in 1994. He said that he did not have a survey done when he purchased the house. The potential buyers of his house had a survey done, and they will not move forward with the purchase until the issue is solved. Mr. Myrick asked Mr. Spero if he was advised to not have a survey done when he purchased the house. Mr. Spero said that it never came up, and it was not an issue at the time. He did not have a survey done. Mr. Myrick asked if he had purchased title insurance. Mr. Spero said that he could not remember, but he thinks that he did. Mr. Clark asked about the retaining wall on the property. Mr. Spero said that the lot is on a slope, and the retaining wall came with the house. The wall was built to hold the land in back of the house. There is another retaining wall in front of the house. There is an area between the retaining wall and the screen that is rough growth including trees and bushes. Mr. Clark said that the house was located in the center of the property between the lot lines. Mr. Spero said that the issue would probably affect the neighbors as well. 2
Mr. Myrick asked if there was any record of a plot plan. Ms. Harper answered that there is not any record of a plot plan. Mr. Odom noted that Mr. Spero is the third owner of the house. Mr. Myrick asked how long staff keeps the plans for the houses that are permitted. Ms. Harper answered that the state retention laws dictate that the plans are kept for six years. Mr. Odom asked whether the house was outside the setback (except perhaps the steps) when it was built. Ms. Harper testified that the house is not on the recorded map, so staff had to approximate the measurements. The best that staff could ascertain is that the porch, steps, and concrete walkway were likely constructed within the setback. There was no one else who wished to speak in favor of or in opposition to the request. MOTION Mr. Clark made a motion in the matter of BA V-2203-14 that the Board find and conclude that the petition does meet the requirements of Article 19-26 of the Wake County Unified Development Ordinance and North Carolina General Statute Section 160A-388(d), and that the requested variance be granted to allow the home at 6208 Trevor Court be allowed to remain within the water supply watershed buffer and within the required building setback, with the recommended condition. Mr. Myrick seconded the motion. By a vote of 5-0, the motion passed, and the variance was granted. So ordered. FINDINGS OF FACT (1) 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. Denial of the variance would require relocating or removing parts of the house to meet the requirements of the ordinance. (2) 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 location of the house includes a steep slope and retaining wall to the rear of the house, and there was testimony that adjoining lots may have the same situation. The condition occurred by nature through no action of the owner. (3) 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 applicant is the third owner of the property. He purchased the house in 2004. The house was built in 1994. There was testimony that the flood elevation was met and certified. The condition occurred by nature through no action of the owner. (4) The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. CONCLUSIONS OF LAW Unnecessary hardship would result from the strict application of the ordinance. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. The hardship did not result from actions taken by the applicant or the property owner. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. IT IS THEREFORE ORDERED: The petitioner/landowner must record the notarized form pertaining to the order of the Board in the Wake County Register of Deeds and return a copy to Planning, Development and Inspections Division of Community Services. 3
Item 6: New Business Mr. Finn reported that the Board of Commissioners approved two ordinance amendments related to fixed banner signs and telecommunications towers. There were nine new subdivision applications earlier in February. Over the last quarter, zoning permits have doubled over last year. Mr. Finn updated the board on the Land Development System project that is ongoing. Mr. O Melia and the board recognized Mr. Odom for his 17 years of service on the Board of Adjustment. Item 7: Old Business There was none. Item 8: Adjournment Hearing no additional business, the meeting was adjourned at 9:30 a.m. 4