Raleigh Board of Adjustment Minutes

February 8, 2016

RALEIGH BOARD OF ADJUSTMENT MINUTES

The Raleigh Board of Adjustment met in regular session on Monday, February 8, 2016, at 1:00 p.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:

BoardStaff

J. Carr McLamb, Chairman (City)John Silverstein, Attorney to the Board

Karen Kemerait, Vice Chair (City)Assistant Planning Director Travis Crane

Eugene Conti, Secretary (City)Planning Administrator Eric Hodge

Donald Mial (County)Assistant Deputy Clerk Ralph Puccini

Judson Root (City Alternate)

Brian Williams (City)

Absent

Betsy Kane (City Alternate)

These are summary minutes unless otherwise indicated:

Chairman McLamb called the meeting to order, introduced members of the Board and staff present, and read the rules of procedure for today’s meeting. He thanked and expressed his appreciation to those Applicants whose cases were deferred to this meeting from the Board’s January 11, 2016 meeting due to the lack of quorum and, as a result, advised there was a lengthy agenda for today’s meeting.

Clerk’s note: Staff posted a notice at the door of the Council Chamber that the following cases were withdrawn from the agenda as Stormwater Staff had determined that no variances were needed:

A-8-16 – 1141 Wimbleton Drive.

A-26-16 – 2403 White Oak Road

A-27-16 – 323 Shepherd Street

Chairman McLamb swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, who used a PowerPoint presentation in aid to giving testimony.

The following applications were heard with actions taken as shown:

A‐2-16 – 2/8/16

Decision:Approved as requested.

WHEREAS, Unitarian Universalist Fellowship of Raleigh, property owner, requests a modification to their previously approved special use permit for Special Care Facility with 25 enrollees (A-60-15) to extend their operational hours to 8:00 AM to 6:00 PM, Monday through Friday pursuant to Section 6.2.3.D. of the Unified Development Ordinance on a 3.67 acre property zoned Residential-4 and located at 3313 Wade Avenue.

Planning Administrator Eric Hodge (sworn) explained the Applicant previously appeared before the Board in February, 2015,and obtained a Special Use Permit for a special care facility with approved hours of operation from 2:00 p.m. to 6:00 p.m. Monday through Friday while school is in session and 8:00 a.m. to 6:00 p.m. during summer and on teacher work days and holidays. He pointed out the Applicant also has an approved Special Use Permit to operate a daycare facility on the premises. Mr. Silverstein questioned when the daycare permit is set to expire with Mr. Hodge responding the permit is set to expire in July 2016; however, he did not know whether the church has plans to open the daycare. In response to questions, Mr. Hodge indicated no additional landscaping or fencing is required for the special care facility. He stated staff is not opposed to the request.

Applicant

Carolyn Goins (sworn), indicated when she originally applied for the permit, she did not fully understand the scope her clients’ needs. She stated her current hours of operation are 2:00 p.m. to 6:00 p.m. Monday through Friday, 12:00 noon to 6:00 p.m. on teacher work days, and 8:00 a.m. to 6:00 p.m. holidays and Saturdays.

Opposition

Carolyn Button Guthrie, 905 Beaver Dam Road (sworn), read the following prepared statement:

The reason for our opposition is the Wade Avenue entrance is not used as the primary entrance. The increased traffic on small, windy neighborhood streets will adversely impact the quiet life in the neighborhood. Residential streets have parked cars on the both aides and no sidewalks, making it dangerous for an area with as much pedestrian traffic as exists from residents walking through their neighborhood in the a.m. and p.m.

The quality of life of the neighbors will be negatively impacted not only by the increased use of side streets by users, but also by the noise of slamming doors and lock/unlock horns in the rear parking lot. The rear parking lot serves as the primary entrance for activities at the site. 25 cars equal 50 slams at drop-off times and 50 slams at pick-up times.

The current use on the part of the applicant already negatively impacts the quality of life in the neighborhood. It is not unusual for the applicant to host special events three to four times weekly in the evenings, thereby increasing the noise impact significantly. This is in addition to the primary function of the applicant, which generates up to 200 members for Sunday services. From 9:00 a.m. to noon, parishioners use neighborhood streets to access the rear parking lot, creating an undue burden on the neighbors, both from traffic and slamming doors and lock/unlock horns.

The current use is intrusive and will be amplified by any additional special use.

Neighbors’ concerns regarding negative environmental impact on the part of the applicant have been ongoing since the 1980’s. This folder contains documentation supporting the fact that the applicant has shown blatant disregard for concerns from neighbors about erosion and run-off due to drastic grade changes to accommodate rear parking. This lack of concern on the part of the applicant for the negative impact the site has created for the neighbors has been compounded with time. The gravel parking lot that abuts the property line was covered with asphalt in the 1990’s and has increased an already serious run-off and drainage problem for the neighbors. At this time, widely spaced landscape timbers marking parking spaces along the property line funnel run-off directly into our backyards. A sinkhole has emerged in their rear parking lot which is indicative of an underground water pipe break. The applicant has made no effort to address this issue other than placing orange cones in the affected area.

The applicant has a long standing history of a “wait and see” attitude toward such negative environmental impact issues. The attitude has adversely affected our properties.

The applicant has applied for 3 special use permits in the past 6 in the past 6 months. They have yet to show that they are able or willing to follow guidelines set forth by the Board. The daycare facility, approved in June, allows 70 enrollees. Add this to the 25 enrollees for this application, and the traffic, noise, and environmental concerns, and you have a situation that is no-win for the neighborhood.

The applicant has set a precedent that has shown a history of disregard, disrespect, and intrusiveness toward its neighbors. I therefore request that this special use permit be denied.

James Willard, 823 Beaver Dam Road (sworn), expressed his support for Ms. Guthrie’s concerns regarding issues with the church. He talked about past concerns regarding zoning violations at the church and urged that access be restricted to Wade Avenue and that the Board conduct a review after one year.

Rebuttal by Applicant

Ms. Goins indicated her operation will use the Wade Avenue entrance as that is where her facility is located. In response to questions, Ms. Goins stated she will be transporting most of her enrollees. In noting some enrollees will be dropped off at the church as part of her service, she is responsible for transporting clients. She indicated the Wade Avenue entrance is most convenient to her facility.

Requests for Notification

None.

Findings of Fact

1.Applicant seeks a modification of a special use permit issued pursuant to Raleigh City Code Section 10-2072 in February, 2015, for a Special Care Facility.

2.The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.

3.Applicant’s hours of operation are presently limited to 8:00 a.m. 2:00 p.m. while school is in session, and 8:00 a.m. to 6:00 p.m. during the summer and other holidays and teacher work days. Applicant proposes to extend the operating hours to 8:00 a.m. to 6:00 p.m., Monday through Friday.

4.The limitation on hours was necessitated because a separate Special Use Permit was issued for a daycare facility to operate on the same premises at the same time.

5.The day care facility did not begin operations within 1 year of the date the permit was issued, and therefore the Special Use Permit expired under the Board’s rules.

6.There are a maximum of 25 enrollees in the Special Care Facility, and the Wade Avenue entrance is utilized for drop off and pick up.

7.Pursuant to Raleigh City Code Section 10-2141(b), the Board has 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 buildings adjoining or in the vicinity of the property mentioned in the application

(c)Traffic conditions in the area and accessibility of the building for fire and police protection.

8.Based on the application, including the plot plan, and the testimony at the hearing, Applicant has satisfied the requirements of Raleigh City Code Section 10-2072.

Conclusions of Law

1.Applicant has met the requirements of Raleigh City Code Section 10-2072, and the special use permit for the Special Care Facility should be modified to extend the hours of operation to 8:00 a.m. to 6:00 p.m., Monday through Friday.

2.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 Chapter 10 of the Raleigh City Code Section 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 approve the request to modify the Special Use Permit to expand the hours of operation to 8:00 a.m. to 6:00 p.m. Monday through Friday. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Williams. Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the modification request granted.

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A-3-16 – 2/8/16

Decision:Approved as requested.

WHEREAS, Anne Fleming Hunter & Jane Fleming Rabil, property owners, request a 2’ corner lot width variance to legalize an existing corner lot as well as a 1’ lot depth variance and a 1,208 SF variance to the minimum lot area requirements pursuant to section 2.2.1. of the Unified Development Ordinance to allow for a two lot subdivision which results in a 58’ wide corner lot and a 59’ deep interior lot that is 2,792 SF on property zoned Residential-10 and Historic Overlay District located at 304 North Person Street and 311 East Lane Street.

Planning Administrator Eric Hodge (sworn) stated the subject lot is located in the Oakwood Historic District and that the Applicants are requesting to create a property line between the 2 existing dwellings on the subject lot. He talked about the setback issues for each dwelling once the lot is subdivided. He stated staff is not opposed to the request.

Applicant

Anne Hunter, 2724 Anderson Drive (sworn), stated her grandfather built the house facing Person Street in 1909 and then the house facing Lane Street in around 1917, and indicated at that time it was not an issue to have 2 houses on one lot. She stated the intent was to have 2 separate residences all along and that she and her sister are making this request to “clean up the matter”.

Opposition

None.

Requests for Notification

None.

Findings of Fact

1.Applicants seek variances from UDO §2.2.1 to legalize an existing corner lot and create a two lot subdivision.

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 minimum width of 60 feet and minimum size of 4000 square feet for each lot.

6.Applicant is unable to comply with UDO §2.2.1 because one lot would be 58 feet wide, the other 59 feet wide, and one lot would be 2792 square feet.

7.At present, there are two houses on one lot, one at 304 N. Person Street, and one at 311 E. Lane Street.

8.Applicants’ grandfather built the Person Street house in 1909, and the Lane Street house in 1917, which is prior to the enactment of lot width and density requirements in the Raleigh City Code.

9.The subdivision would remove the nonconformity of having two houses on the same lot.

10.Each house is occupied by a separate family.

11.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.

12.The character of surrounding properties would not be adversely affected by the granting of the variance.

13.Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.

14.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 approve the variances as requested. His motion was seconded by Mr. Williams and received the following vote: Ayes – 5 (McLamb, Williams, Kemerait, Conti, Mial); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variances granted.

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Clerk’s note: The Board took separate votes on the next 2 applications (A-4-16 and A-5-16); however, the applications were heard concurrently as both applications involved the same subject property and Applicant.

A-4-16 – 2/8/16

Decision:Approved with the condition the Special Use Permit is limited to the Jesuit Volunteer Corps as lessee.

WHEREAS, Michael Greenspan, property owner, requests special use permit to operate a Boardinghouse pursuant to Section 6.2.2.B. of the Unified Development Ordinance on a .15 acre property zoned Residential-10 and Historic Overlay District located at 704 Florence Street.

A-5-16 – 2/8/16

Decision:Approved as requested.

WHEREAS, Michael Greenspan, property owner, requests a 3 space variance from the off-street parking requirements set forth in Section 7.1.2. of the Unified Development Ordinance to allow for a 3 bedroom Boardinghouse to have only 2 off-street parking spaces on a .15 acre property zoned Residential-10 and Historic Overlay District located at 704 Florence Street.

Planning Administrator Eric Hodge (sworn) explained the boarding house use standards under the Unified Development Ordinance (UDO) and pointed out there are no other registered boarding houses within the 1,200 foot restriction. He pointed out Case A-5-16 deals with parking restrictions for the subject property, and went on to talk about hardship qualifications for the parking variance. He stated Staff is not opposed to either request. In response to questions, Mr. Hodge stated the parking issue is not a use standard in this application.

Mr. Conti requested clarification that the subject property has been used as a boarding house for some time with Planning Administrator Hodge indicating that is correct and went on to state the property is being used to provide living space for charity workers, and that the issue came to the City’s attention as a result of a complaint.

Discussion took place regarding whether the parking variance would expire once the boarding house is discontinued. Discussion also included the City’s 1,200 foot buffer zone between boarding houses.

Applicant

Attorney Meghan Melo, Legal Aid of North Carolina (sworn), representing the Applicant, submitted a packet of information containing the following documents:

1.Letter dated February 6, 2016 from Josh Marlow, President, Boylan Heights Neighborhood Association (unsigned);

2.Information regarding the Jesuit Volunteer Corps; and

3.Signed, sworn, and notarized affidavit from the Applicant, Michael Greenspan.

Attorney Melo talked at length about the Jesuit Volunteer Corps (JVC) program indicating she herself is a former volunteer. She referred to her client’s affidavit noting anywhere from 4 to 6 volunteers reside in the dwelling and stated the dwelling is furnished. She indicated the lease arrangement is 1 lease for the facility, and there is 1 vehicle associated with the program. In response to questions, Ms. Melo stated there have been 4 to 6 volunteers living on the premises for a number of years. She stated her client is willing to supply a copy of the lease to the Board; however, her client does not intend to operate the boarding house in perpetuity.

Chairman McLamb questioned whether the Applicant had any objection to a limit on the number of cars on the lease with Attorney Melo responding the agency discourages volunteers from bringing their own vehicles.

Rich Miller-Haraway, Catholic Charities (sworn), indicated volunteers are discouraged from bringing their vehicles and stated the aim of the program is for volunteers to experience what it is like to live in poverty-like situations.

Attorney Melo reiterated her client does not intend to use the dwelling as a boarding house in the long term. She talked about the agency’s unique relationship with her client as he also is a former volunteer. She asserted the noise concern should not be an issue, and also asserted the application is in keeping with the spirit and intent of the UDO.