Raleigh Board of Adjustment Minutes
September 11, 2015
RALEIGH BOARD OF ADJUSTMENT MINUTES
The Raleigh Board of Adjustment met in regular session on Friday, September 11, 2015 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
Karen Kemerait, Vice Chair (City)John Silverstein, Attorney to the Board
Tommy Jeffreys, Secretary (County)Assistant Planning Director Travis Crane
Brian Williams (City)Planning Administrator Eric Hodge
Judson Root (City Alternate)Assistant Deputy Clerk Ralph Puccini
Absent:
J. Carr McLamb, Jr., Chairman (City)
Eugene Conti (City)
Betsy Kane (City Alternate)
These are summary minutes unless otherwise indicated:
Vice Chair Kemeraitcalled the meeting to order and introduced members of the board present. She pointed out there were only 4 voting members present at today’s meeting and indicated variance requests require a minimum of 4 affirmative votes to approve; therefore, all variance requests at today’s meeting would require a unanimous vote by the Board. She stated applicants have the option to have their cases deferred to the Board’s next meeting, which would be held on October 12, 2015. She went on to state that she would have to recuse herself from 2 of the cases scheduled for today’s meeting, A-72A-15 and A-72B-15 and; therefore, those cases will be deferred to the Board’s October 12, 2015 meeting as there would be no quorum at today’s meeting to vote on the matter.
Attorney Jim Light, representing the applicants for cases A-75-15 through A-79-15, requested that these cases be deferred to the Board’s October 12, 2015 meeting. Without objection, Vice Chair Kemerait granted the Applicants’ requests for deferral and, on the behalf of the Board, apologized to the applicants present at today’s meeting who had their cases deferred.
Vice Chair Kemerait introduced members of City Staff present at today’s meeting and went on to read the rules of procedure; after which, she swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, who used a PowerPoint presentation in aid to giving testimony.
The following cases were heard with actions taken as shown:
A-58-14 – 9/11/15
Decision:Approved as requested.
WHEREAS, Brighton Pointe LP, property owner, requests a 12 month extension to the 40 foot variance to the maximum setback requirement along Forestville Road contained in Zoning Condition (D), Zoning Ordinance No. (2004) 648 ZC 550 for a multi-family development on property zoned Thoroughfare District – Conditional Use District and Residential-6-Conditional Use District and located at 3140 Leland Drive.
Planning Administrator Eric Hodge (sworn) indicated this application first appeared before the Board noting the original approval pre-dated the City’s Tree Conservation Ordinance. He pointed out sanitary sewer and drainage easements traverse the property and talked about how they affect the building setback. He stated staff did not oppose the request for extension.
Applicant
Attorney Isabel Worthy Mattox 127 West Hargett Street, (sworn) representing the Applicant indicated the approval is part of a proposed affordable housing project and stated funding for the project was delayed due to tax credit application issues. She stated funding is now in place and her client is ready to proceed with the project and, on behalf of her client, urged the Board grant the extension.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks an extension of time to secure a building permit, grading permit or Certificate of Occupancy.
2.The Board has considered Applicants’ verified application and the evidence and testimony adduced at the hearing.
3.Applicant received a 40 foot setback variance on August 11, 2014.
4.Board Rule of Procedure (“BRP”) V.D.3 provides that a variance will expire if a grading permit, building permit, or certificate of occupancy is not obtained within the time specified in the UDO, which is 1 year.
5.BRP allows an extension of time for good cause shown.
6.Applicant proposes to erect an affordable housing facility, for which funding was initially delayed due to tax credit application difficulties, which have now been resolved.
Conclusion of Law
Applicant has shown good cause for an extension of time.
Motion
Vice Chair Kemerait moved to approve the extension for good cause pursuant to Board Rule V.F.3. Her motion was seconded by Mr. Williams and received the following vote: Ayes – 4 (Kemerait, Williams, Jeffreys, Root); Noes – 0. Vice Chair Kemerait ruled the motion adopted on a 4-0 vote and the extension granted.
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A-68-15 – 9/11/15
Decision:Approved as requested.
WHEREAS, Donald Corey and Vanese Clough, property owners, request a .6’ rear yard setback variance from the regulations set forth in Section 2.2.1 of the Part 10A Unified Development Ordinance to legalize an existing detached house in order to allow a street-facing addition to be constructed on a .24 acre property zoned Residential-10 and Neighborhood Conservation Overlay District located at 919 Brookside Drive.
Planning Administrator Eric Hodge (sworn) explained the request noting the existing dwelling sits shy of the required setback and requires legalization for the addition. He stated staff is not opposed to the request.
Applicant
Vanese Clough, 919 Brookside Drive (sworn), affirmed Mr. Hodge’s testimony and stated her home was built in 1956. In response to questions, Ms. Clough stated the proposed addition would conform to the current setback.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks a variance from UDO §2.2.1 to legalize the existing structure to allow the construction of an addition.
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 20 foot rear yard setback.
6.Applicant is unable to comply with UDO §2.2.1 because the existing dwelling is 0.6’ inside the rear yard setback.
7.The dwelling was erected in 1956.
8.The addition will meet all setback requirements.
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 thegranting 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 affirmedbuildings 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
Mr. Williams moved to approve the variance as requested. His motion was seconded by Mr. Jeffreys and received the following vote: Ayes – 4 (Williams, Jeffreys, Kemerait, Root); Noes – 0. Vice Chair Kemerait ruled the motion adopted on a 4-0 vote and the variance granted.
A-69-15 – 9/11/15
Decision:Approved variances as requested with the condition the Applicant submits an application for a building permit at the same time an application is submitted for a demolition permit for the existing dwelling.
Lyndsay Robin Dalby Hanna, property owner, requests a 6.5’ primary street setback variance from the regulations set forth in Section 5.4.3.F.2.a. of the Part 10A Unified Development Ordinance to construct a detached house resulting in a 30’ primary street setback and a 3.89’ side street variance from the regulations set forth in Section 2.2.1 of the Unified Development Ordinance to legalize an existing non-conforming accessory structure resulting in a 16.11’ side street setback for the detached garage as well as a request allow it to remain for an 18 month period without a primary structure present on the .21 acre lot zoned Residential-10 and Neighborhood Conservation Overlay located at 816 W. Johnson Street.
Planning Administrator Eric Hodge (sworn) talked about the setback requirements in the Cameron Park Overlay District pointing the small set of properties on this block were used to calculate the setback for the subject property. He stated the Applicant proposes to demolish the existing dwelling and construct a new dwelling with a front porch. He indicated Staff is not opposed to the request for the variances for the new dwelling. He went on to state Staff is also not opposed to the requests for legalizing the existing detached garage; however, he requested a condition that the Applicant be required to pull building permits simultaneously with the demolition permits for the existing dwelling to show good faith.
Brief discussion took place regarding rear yard setbacks.
Applicant
Lyndsay Hanna, 816 West Johnson Street (sworn) explained her request noting a front porch would be in keeping with the neighborhood’s character. She stated she will not tear down the garage and indicated she will apply for building permits at the same time as applying for the demolition permit.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicants seek a variance from UDO §5.4.3.F.2.a to construct a detached house.
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 §5.4.3.F.2.a, Applicants would have to provide setbacks that are consistent with the requirements of the Cameron Park Overlay District.
6.Applicantsare unable to comply with UDO §5.4.3.F.2.a because the property is not deep enough to accommodate the front yard setback requirement and erect a detached house.
7. This lot is located in the Cameron Park Overlay District, which requires that the front yard setback be established based on the setbacks of adjacent properties, but this particular block has fewer properties than are normally used to establish the setbacks.
8.Applicants propose a 30 foot front yard setback, which would exceed the setback for most dwellings in the vicinity.
9. Applicant proposes to demolish the existing structure and construct a new dwelling with a front porch.
10.Applicant also proposes to allow the existing nonconforming garage to remain during the period of construction, even though there would not be a principal dwelling on the lot.
11.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
12.Applicants’ hardship is related to the unique circumstances of the property, namely the fact that the subdivision was developed prior to the enactment of lot width requirements in the Raleigh City Code.
13.The Applicant's actions did not create the hardship.
14.The character of surrounding properties would not be adversely affected by thegranting of the variance.
15.Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.
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.It is necessary and appropriate to impose the following condition and safeguard on the issuance of the variance: applicant must submit an application for a building permit at the same time as a demolition permit for the existing structure is requested.
6.If the condition affixed hereto shall be declared invalid, or void, then this decision shall be void and of no effect.
7.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
Vice Chair Kemerait moved to approve the variances as requested with the condition the Applicant applies for her building permits at the same time as applying for the demolition permit. Her motion was seconded by Mr. Williams and received the following vote: Ayes – 4 (Kemerait, Williams, Jeffreys, Root); Noes – 0. Vice Chair Kemerait ruled the motion adopted and the variances granted with the condition.
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A-70-15 – 9/11/15
Decision:Approved as requested.
WHEREAS, Kimberly Anderson, property owner, requests a 7-1/4" side yard setback variance from the standards set forth in Section 2.2.1 of the Part 10A Unified Development Ordinance to legalize and expand an existing detached house to the rear and a 1’ primary street setback variance from Section 5.4.3.F.8.b.v. of the Unified Development Ordinance to legalize the existing primary street setback resulting in a 4.39’ side yard setback and a 26’ primary street setback on a .12 acre property zoned Residential-10 and Neighborhood Conservation Overlay District located at 417 Frank Street.
Planning Administrator Eric Hodge (sworn) described the request noting the existing structure was built in the 1920’s, and that the proposed addition would be in line with the existing structure. He indicated Staff is not opposed to the request.
Applicant
Kim Anderson, 417 Frank Street (sworn), affirmed Mr. Hodge’s testimony and indicated the proposed addition would extend of the rear of the dwelling.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicant seek a variance from UDO §221 and §5.4.3.F.8.b.v to legalize and expand an existing structure.
2.The Board has considered Applicants’ 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 §221 and §5.4.3.F.8.b.v, Applicant would have to meet the side yard setback and Neighborhood Conservation Overlay District front yard setback on a .12 acre lot.
6.Applicant is unable to comply with UDO §221 and §5.4.3.F.8.b.v because the structure was erected prior to the enactment of setback requirements, and is therefore a legal nonconformity.
7. The proposed addition would not encroach any further into the setbacks than the existing dwelling.
8.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
9.The Applicant's actions did not create the hardship.
10.The character of surrounding properties would not be adversely affected by thegranting of the variance.
11.Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.
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 reverse, modified, or affirmed.
Motion
Mr. Williams moved to approve the variance as requested. His motion was seconded by Mr. Jeffreys and received the following vote: Ayes – 4 (Williams, Jeffreys, Kemerait, Root); Noes – 0. Vice Chair Kemerait ruled the motion adopted and the variance granted.
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A-71-15 – 9/11/15
Decision:Denied.
WHEREAS, Anna & Kurt Regensburger, property owners, request an 11.2’ primary street yard setback variance from the Residential Infill Compatibility requirements set forth in Section 2.2.7.C of the Part 10A Unified Development Ordinance to allow for a front-facing addition to a detached house resulting in a 27.8’ street yard setback on a .14 acre property zoned Residential- located at 3118 Stedman Drive.
Planning Administrator Eric Hodge (sworn) indicated the subject property appeared before the Board in 2014 to legalize the existing dwelling. He stated Staff has concerns with the proposed front addition due to infill compatibility issues as the addition would protrude 11.2 feet beyond its closest neighbor.
Applicant
Kurt Regensburger, 3118 Stedman Drive (sworn), stated he and his wife purchased the property 2 years ago. He indicated they removed an existing shed, and propose to build an addition to make the dwelling more livable and increase the property value. He stated the stoop would be incorporated in the proposed addition.
Discussion took place regarding hardship issues with Mr. Williams questioning whether the entire front addition would encroach into the setback and Mr. Regensburger responding the stoop would be part of the addition. In response to questions, Mr. Regensburger indicated the hardship would also include a redesign of the addition along with the additional fees associated with the redesign.