Raleigh Board of Adjustment
June 13, 2016
RALEIGH BOARD OF ADJUSTMENT MINUTES
The Raleigh Board of Adjustment met in regular session on Monday, June 13, 2016, at 9:00 a.m. in the City Council Chamber, Room 201 of the Raleigh Municipal Building, Avery C. Upchurch Government Complex, 222 W. Hargett Street, Raleigh, North Carolina with the following present:
Board Staff
J. Carr McLamb, Chairman (City) John Silverstein, Attorney to the Board
Donald Mial (County) Assistant Planning Director Travis Crane
Neil Riemann (City Alternate) Planning Administrator Eric Hodge
Judson Root (City Alternate) Assistant Deputy Clerk Ralph Puccini
Absent
Karen Kemerait, Vice Chair (City)
Eugene Conti, Secretary (City)
Brian Williams (City)
These are summary minutes unless otherwise indicated:
Chairman McLamb called the meeting to order, and introduced members of the Board and staff present. He stated there were only 4 voting members present at today’s meeting and indicated any variance request requires a minimum 4 affirmative votes to approve; therefore, all Applicants requesting variances will be given the option to defer their petitions to the Board’s July 11, 2016 meeting. He also indicated Special Use Permit applications require only a simple majority vote to approve.
Chairman McLamb read the rules of procedure for today’s meeting, and then asked if there were any Applicants who wished to have their requests deferred to the July 11, 2016 meeting.
The following Applicants came forward to request deferral:
A-59-16 through A-65-16 – 900, 902, 1000, 1002, 1004, 1006, and 1008 Norris Street. Attorney Michael Birch, Morningstar Law Group, representing the Applicant, requested his client’s application be deferred to the July 11, 2016 meeting.
A-70-16 – 1211 East Martin Street. David Autry, property owner, requested his application be deferred to the July 11, 2016 meeting.
A-54-16 – 2330 Byrd Street. Planning Administrator Eric Hodge indicated the Applicant requested her application be deferred to the July 11, 2016 meeting as she is still in discussions with her neighbors to address concerns.
Chairman McLamb stated that, without objection, these applications will be deferred to the Board’s July 11, 2016 meeting.
The following application was withdrawn from the agenda:
A-72-16 – 111 South Tarboro Street. Planning Administrator Eric Hodge indicated this application has been withdrawn at the request of the Applicant.
Chairman McLamb swore in Planning Administrator Eric Hodge, who used a PowerPoint presentation in aid to giving testimony.
The following applications were heard with actions taken as shown:
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A-54-16 – 6/13/16
Decision: Deferred to the Board’s July 11, 2016 meeting.
WHEREAS, Catherine Thomas, property owner, requests a 4’ side yard setback pursuant to Section 2.2.1. of the Part 10A Unified Development Ordinance to allow for an addition to the rear of the existing detached house that results in a 6’ side yard setback on a .26 acre property zoned Residential- 4 and located at 2330 Byrd Street.
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A-57-16 – 6/13/16
Decision: Approved as requested.
WHEREAS, Shawn and Sharon Lorden, property owners, request a 2.1 foot side yard setback variance to add a carport to the existing detached house pursuant to Section 2.2.1 of the Part 10A Unified Development Ordinance that results in a 7.9 foot side yard setback on a .31 acre property zoned Residential-4 and Special Residential Parking Overlay District located at 5109 Melbourne Road.
Planning Administrator Eric Hodge (sworn), reviewed the application stating the Applicants wish to add a carport to the side of the dwelling. He indicated the Applicants also own the property adjacent to the side of the proposed carport. He stated staff is not opposed to the request.
Mr. Riemann questioned whether the adjacent property is also residential with Mr. Hodge responding in the affirmative noting the adjacent property is the Applicants’ residence and went on to explain encroachment allowances for porches and carports.
Mr. Riemann questioned whether any part of the carport would be enclosed.
Applicant
Shawn Lorden (sworn), in response to Mr. Riemann’s question, stated the carport would be open and supported by columns. He pointed out a house located across the street has a carport that stretches to the property line, and that the house located immediately to the east of the subject property has its carport encroaching into the 10 foot setback. He went on to confirm that he and his wife own the adjoining properties and that the subject dwelling will be rented out.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1. Applicant seeks a variance from UDO §2.2.1 to attach a carport to the side of a dwelling.
2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.
3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application.
4. Public Notice requirements of UDO §10.2.1.C. have been met.
5. In order to comply with UDO §2.2.1, Applicant would have to provide a 10 foot side yard setback in this R-4 zoning district.
6. Applicant is unable to comply with UDO §2.2.1 because the carport would encroach 2.1 feet into the rear yard setback.
7. The Applicants own the adjacent lot, and reside in a dwelling that is next to the proposed location of the carport.
8. The proposed carport will be supported by columns rather than a solid wall.
9. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
10. The character of surrounding properties would not be adversely affected by the granting of the variance.
11. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.
12. The Board has also considered the following relevant factors:
(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application.
(b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.
Conclusions of Law
1. Unnecessary hardship would result from the strict application of the ordinance.
2. The hardship results from conditions that are peculiar to the property.
3. The hardship did not result from actions taken by the Applicant or the property owner.
4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved.
5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.
Motion
Chairman McLamb moved to grant the variance as requested. His motion was seconded by Mr. Mial and received the following vote: Ayes – 4 (McLamb, Mial, Riemann, Root); Noes – 0. Chairman McLamb ruled the motion adopted on a 4-0 vote and the variance granted.
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A-58-16 – 6/13/16
Decision: Deferred to the Board’s July 11, 2016 meeting.
WHEREAS, Lafayette Ferguson Norton, Geraldine Norton Aquadro and Jean Norton Dickman, property owners, request a variance for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Part 10A Unified Development Ordinance to allow for the construction of a detached house and any accessory structures/impervious surfaces on a .44 acre property zoned Residential-6 and located at 2129 Cowper Drive.
Planning Administrator Eric Hodge (sworn) reviewed the application indicating a ghost lot line runs through the subject property and that the existing dwelling will be demolished. He indicated TC-6-15 was not intended for smaller lots and pointed out removing the ghost line lessens the property’s nonconformity under TC-6. He stated the Planning Commission is discussing modifications to TC-6 to exempt smaller lots, and stated staff is not opposed to the request.
Applicant
Attorney Ben Kuhn, Ragsdale Leggett, representing the Applicants (sworn), submitted a packet of information and indicated the deceased owners’ heirs are out of town and indicated they are selling the property. He stated the ghost line would be removed and the property would be sub-divided into 2 lots of equal size that would meet all Residential-6 setback requirements. He asserted the variance request is in keeping with the spirit and intent of the ordinance.
Discussion took place regarding how the amount of impervious surface will be impacted with Attorney Kuhn, in response to questions, stating once the ghost lot is removed the lots will be re-divided into two 50-foot wide lots.
Planning Administrator Hodge requested this matter be deferred to the July meeting stating staff did not know the Applicants had intended to build 2 dwellings. He pointed out neither the application nor the information received gave any indication of the intent.
Attorney Kuhn indicated he would agree to the deferral as it was not his clients’ intent to mislead staff.
Chairman McLamb stated that, without objection, the matter would be deferred to the Board’s July 11, 2016 meeting.
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A-59-16 Through A-65-16 – 6/13/16
Decision: Deferred to the Board’s July 11, 2016 meeting.
WHEREAS, Robuck Partners LLC, property owner, requests variances for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Part 10A Unified Development Ordinance to allow for the recombination of seven lots into six lots and the subsequent construction of a detached house and any accessory structures/impervious surfaces on each of the recombined lots currently ranging in size from .16 to .28 acres and zoned Residential-10 and located at 900, 902, 1000, 1002, 1004, 1006, and 1008 Norris Street.
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A-66-16 – 6/13/16
Decision: Approved as requested.
WHEREAS, David and Alicia Kenoyer, property owners, request a variance for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Part 10A Unified Development Ordinance to allow for the construction of a detached house and any accessory structures/impervious surfaces on a .29 acre property zoned Residential-6 and located at 833 Woodburn Road.
Planning Administrator Eric Hodge (sworn), indicated this application is similar to A-58-16 heard earlier in the meeting in that there is a ghost line involved and that Applicants will be replacing the existing dwelling, which currently straddles the ghost line, with a new single family residence. He indicated the 2 lots have been listed as 1 tax parcel for many years, and stated staff is not opposed to the request.
Applicant
David Kenoyer, 833 Woodburn Road (sworn), confirmed Mr. Hodge’s testimony and stated the variance is required in order to pull building permits.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1. Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct a new home on a vacant lot.
2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.
3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application.
4. Public Notice requirements of UDO §10.2.1.C. have been met.
5. In order to comply with UDO §9.2.2, Applicant would have to provide active stormwater control measures to the lot because TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size.
6. Applicant is unable to comply with UDO §9.2.2 because Applicant has removed a dwelling that was erected on 2 lots straddling a property line in this R-6 zoning district.
7. Even though the two existing lots have been treated as one tax parcel and the removal of the “ghost” property line would eliminate the nonconformity created by erecting one house on two lots, it would also trigger the stormwater control requirements specified in TC-6-15 because the existing structure has been removed.
8. The “new” .29 acre lot would have been exempt prior to TC-6-15, and a proposed ordinance, TC-2-16, will restore the exemption.
9. Since the demolished structure is simply being replaced, there is no additional impact on impervious surfaces or stormwater runoff.
10. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
11. The character of surrounding properties would not be adversely affected by the granting of the variance.
12. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.
13. The Board has also considered the following relevant factors:
(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application.
(b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.
Conclusions of Law
1. Unnecessary hardship would result from the strict application of the ordinance.
2. The hardship results from conditions that are peculiar to the property.
3. The hardship did not result from actions taken by the Applicant or the property owner.
4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved.
5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.
Motion
Chairman McLamb moved to grant the variance as requested. His motion was seconded by Mr. Riemann and received the following vote: Ayes – 4 (McLamb, Riemann, Mial, Root); Noes – 0. Chairman McLamb ruled the motion adopted on a 4-0 and the variance granted.
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A-67-16 – 6/13/16
Decision: Approved with the following conditions:
1. Maximum of 40 enrollees; and
2. Hours of operation 7:00 a.m. to 7:00 p.m. Monday through Saturday.
WHEREAS, St. Matthew Baptist Church, property owner, requests a Special Use Permit to establish a Day Care Center with 40 enrollees pursuant to Section 6.4.1.C. of the Part 10A Unified Development Ordinance on a 7.92 acre parcel zoned Residential-1 and located at 5410 Louisburg Road.