Raleigh Board of Adjustment
August 8, 2016
RALEIGH BOARD OF ADJUSTMENT MINUTES
The Raleigh Board of Adjustment met in regular session on Monday, August 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
Neil Riemann (City Alternate)
Judson Root (City Alternate)
Absent
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.
Chairman McLambread the rules of procedure for today’s meeting, and swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, who used a PowerPoint presentation in giving testimony.
The following applications were heard with actions taken as shown:
A-90-16 and A-91-16 – 8/8/16
Decision:Approved as requested.
WHEREAS,RuftyHomesInc.,propertyowner,requests variancesforcompleterelieffromtheactivestormwatercontrolmeasures andrequirementssetforthinSection9.2.2oftheUnifiedDevelopmentOrdinancetoallowfortherecombinationofsixlotsintothreelotsandthesubsequentconstructionofadetachedhouseandanyaccessorystructures/impervioussurfacesoneachoftherecombinedlotsthatrangein sizefrom.57to.64acresandarezonedResidential-4andlocatedat 2625 and2631ChurchillRoad.
Planning Administrator Eric Hodge (sworn) explained the request noting that, historically, there has been a detached house on each of the subject lots; however, the propertieswere divided into 6 separate lots. He stated TC-6-15 was intended to address stormwater runoff controls for residential lots larger than 1 acre; however, at the time of adoption the language included smaller lots. He talked about a proposed text change currently under discussion in the Planning Commission to address this issue noting that under the previous Part 10 zoning code stormwater installations for lots less than 1 acre were not necessary. He pointed out this application is the 40th such case to appear before the Board this year and indicated the City Council acknowledges the issue exists. He stated staff is not opposed to the request.
Mr. Silverstein questioned whether the existing dwellings were demolished with Mr. Hodge responding not at this time.
Applicant
Attorney Michael Birch, Morningstar Law Group, 1330 St. Mary’s Street, Suite 460, representing the Applicant (sworn), confirmed Mr. Hodge’s testimony and indicated the subject lots will be recombined from 6 lots into 3. He stated the lots will conform to Residential-4 standards and will be in keeping with other lots in the neighborhood. He stated his client also took care to repair existing stormwater runoff devices. He went on to assert the subject property would have been exempt from stormwater runoff regulations prior to the adoption of TC-6-15.
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 3 new homes. These cases are consolidated for hearing because the Applicant and issues are the same for 3 adjacent properties.
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 lots because the two existing homes are to be demolished, and TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of less than 1 acre. These three lots range in size from .57 to .64 acres.
6.Applicant’s recombination reconfigures six nonconforming lots into three conforming lots in this R-4 zoning district. The two existing structures are built crossing interior lot lines.
7.Even though the recombination would remove “ghost” property lines and render the three lots conforming, it would also trigger the stormwater control requirements specified in TC-6-15 because the existing structures would be removed.
8. The new lots would have been exempt from stormwater controls prior to TC-6-15, and a proposed ordinance, TC-2-16, will restore the exemption.
9.Since the number of lots will be reduced, the new structures will meet all setback requirements in the zoning district.
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 approve the variance as requested. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Riemann); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.
******************************************************************************
A-89-16 – 8/8/16
Decision:Approved as requested.
WHEREAS,NorthStarCapitalGroup,LLC,propertyowner,requests avarianceforcompleterelieffromtheactivestormwatercontrolmeasures andrequirementssetforthinSection9.2.2oftheUnifiedDevelopmentOrdinancetoallowfortheconstructionoftwodetachedhousesandanyaccessorystructures/impervioussurfacesona.46acresitezoned Residential-10andlocatedat3014ChurchillRoad.
Planning Administrator Eric Hodge (sworn) explained this application is similar to the previous cases (A-90-96 and A-91-16) noting in this case there will be 3 lots recombined into 2, the lots will conform to the Residential-10 standards, and the lots would have been exempt prior to the adoption of TC-6-15. He stated Staff is not opposed to the request.
Mr. Riemann questioned the status of the proposed text change to address the stormwater issue with Mr. Hodge responding the item is currently in discussions in the Planning Commission. He indicated staff conducted neighborhood meetings and is making amendments to the text change in response to information gathered at those meetings. Mr. Riemann questioned whether the previous applications approved by the Board would be approved under the proposed text change with Mr. Hodge responding the lots would still have to comply with the UDO impervious surface regulations.
Applicant
Attorney Isabel Worthy Mattox, Post Office Box 946, Raleigh, NC 20602, representing the Applicant (sworn), confirmed Mr. Hodge’s testimony noting this application involves 2 lots plus a portion of a 3rd lot. She indicated the Board has granted similar requests and pointed out the subject lots will be exempt under the proposed TC-2-16. She stated both lots would be below the 65% impervious surface requirements for Residential-10 and urged the Board grant the request.
Opposition
Jane Glover Simpson, power of attorney for her mother, Jo Ann Glover, 3008 Churchill Road, (sworn) stated her mother received written notice of the hearing from the city only this past Wednesday in a Berkshire Hathaway envelope. She indicated her father was an agricultural engineer at North Carolina State University and noted 3014 Churchill Road was always considered a wet lot. She pointed out a retaining wall had deflected stormwater runoff and expressed concern any construction would remove the wall. Mrs. Simpson requested the Board delay its decision so that she may obtain expert testimony.
Rebuttal by Applicant
Attorney Mattox expressed her belief the opposition’s concerns would not affect approval and asserted the stormwater issues could be addressed during the site plan approval process. She asserted expert testimony would not affect the outcome.
Rebuttal by Opposition
Sarah Jane Simpson, Oberlin Road (sworn), indicated she is Mrs. Simpson’s daughter and expressed concern regarding adding another driveway to the street with Mrs. Simpson requesting that the City’s inspectors consider all drainage off the subject property.
Mr. Silverstein pointed out the subject lots would have to meet the City’s stormwater runoff regulations as a condition for site plan approval.
Sam Bass, 1403 Nottingham Road (sworn), questioned the application’s consistency with the neighborhood noting there has been a trend to build larger homes with Chairman McLamb advising the issue before the Board is the stormwater runoff regulations and that the lots would be required to meet current regulations.
Carla Osborn, 1427 Brooks Avenue (sworn) talked about infill development and expressed concern regarding the limited amount of time given to the neighbors to respond to the notices. She expressed her belief the neighbors were being short-changed.
Rebuttal by Applicant
Attorney Mattox talked about hardship with regard to lot size, BMP placement, and reiterated the lots would have been in compliance under the old Part 10 zoning code and will be in compliance under the proposed TC-2-16.
Rebuttal by Opposition
Sally Alcorn, 3036 Churchill Road (sworn), questioned the type of required notices for a Board of Adjustment hearing with Mr. Silverstein responding the Board requires that a notice be posted on the subject property and Assistant Planning Director Travis Crane (sworn) adding property owners within 100 feet of the subject lot are also notified by mail and a legal ad is published in the newspaper no later than 10 days prior to the hearing date.
Mr. Silverstein pointed out the posted notice is the only legal requirement for the hearing with Ms. Alcorn expressing concern mailed notices were received only a few days before the meeting.
Rebuttal by Applicant
Attorney Mattox indicated she was not involved in mailing the notices; however, she asserted all UDO requirements were met.
Chairman McLamb talked about the history of stormwater related cases that appeared before the Board, circumstances surrounding those applications, and how the Board made its decisions.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct 2 new homes on a .46 acre site.
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 lots because an existing home will be demolished, and 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 proposes to recombine two lots and a portion of a third into two lots, and remove a dwelling that currently straddles a lot line.
7. Even though the recombination would remove a “ghost” property line and render the remaining lots conforming, it would also trigger the stormwater control requirements specified in TC-6-15 because the existing structure would be removed. In the alternative, Applicant could subdivide the lots into one lot, remove the structure, and then recombine that lot into two lots without triggering stormwater installation requirements.
8. The new lots would have been exempt from the installation of stormwater control devices prior to TC-6-15, and a proposed ordinance, TC-2-16, will restore the exemption.
9.The proposed impervious surfaces for each lot will not exceed 65%.
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 approve the variance as requested. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Root); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.
******************************************************************************
A-92-16 – 8/8/16
Decision:Approved as requested.
WHEREAS,CharlesandRosalynCreech,propertyowners, requestcompleterelieffromtheactivestormwatercontrolmeasuresand requirementssetforthinSection9.2.2oftheUnifiedDevelopmentOrdinancetoallowfortheconstructionofadetachedhouseandanyaccessorystructures/impervioussurfacesona.35acrepropertyzoned Residential-4andlocatedat3141AshelStreet.
Planning Administrator Eric Hodge (sworn) explained the request and indicated the lot was already recombined at the City’s request to remove a ghost property line and the existing dwelling has been demolished. He stated staff is not opposed to the request.
Applicant
Attorney Isabel Worthy Mattox, Post Office Box 946, Raleigh, NC 27602, representing the Applicants (sworn), confirmed Mr. Hodge’s testimony. She stated the proposed dwelling will have approximately 36% impervious surface and pointed out Residential-4 zoning allows up to 38%. She asserted hardships involve the lot’s size, difficulty in placing a BMP, and that the City required the lots’ recombination.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicants seek a variance from stormwater control measures of UDO §9.2.2 to construct a home on a lot recombined from two separate parcels on which a previously existing house was demolished.
2.The Board has considered Applicants’ verified application and the evidence and testimony adduced at the hearing.
3.Applicants 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, Applicants would have to provide active stormwater control measures to the .35 acre lot because TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size.
6.Applicants’ lots became subject to the provisions of UDO §9.2.2 when they removed the existing dwelling, which was erected straddling an interior property line in this R-4 zoning district.
7. The removal of the “ghost” property line, which was done at the request of the City, eliminated the nonconformity created by erecting a house over a property line.
8. A proposed ordinance, TC-2-16, will restore the exemption that previously existed for lots this size.
9.The recombination will create a conforming lot, and will prevent the continuation of the nonconformity by removing the interior property line.
10.The impervious surface improvements will comprise approximately 36% of the lot area.
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.
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. His motion was seconded by Mr. Root and received the following vote: Ayes – 5 (McLamb, Root, Kemerait, Conti, Mial); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.
******************************************************************************