Raleigh Board of Adjustment Minutes - 10/10/2016

Raleigh Board of Adjustment

October 10, 2016

RALEIGH BOARD OF ADJUSTMENT MINUTES

The Raleigh Board of Adjustment met in regular session on Monday, October 10, 2016, at 1:00 p.m. in the City Council Chamber, Room 201 of the Raleigh Municipal Building, Avery C. Upchurch Government Complex, 222 West 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)

These are summary minutes unless otherwise indicated:

Chairman McLamb called the meeting to order, and introduced members of the Board and staff present and read the rules of procedure for today’s meeting. Chairman McLamb then 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:

Chairman McLamb indicated A-107-16 and A-108-16 will be heard simultaneously as the applications involve adjacent properties owned by the same Applicant and have the same request.

A-107-16 – 10/10/16

Decision:Approved with the condition the subject property does not exceed the maximum 38% impervious surface area for Residential-4 zoning.

WHEREAS,MangrumBuildingLLC,propertyowner,requestsa varianceforcompleterelieffromtheactivestormwatercontrolmeasures andrequirementssetforthinSection9.2.2.oftheUnifiedDevelopmentOrdinancetoallowfortheconstructionofadetachedhouseandanyaccessorystructures/impervioussurfacesona.552acresitezoned Residential-4andlocatedat5211CoronadoDrive.

A-108-16 – 10/10/16

Decision:Approved with the condition the subject property does not exceed the maximum 38% impervious surface area for Residential-4 zoning.

WHEREAS,MangrumBuildingLLC,propertyowner,requestsa varianceforcompleterelieffromtheactivestormwatercontrolmeasures andrequirementssetforthinSection9.2.2.oftheUnifiedDevelopmentOrdinancetoallowfortheconstructionofadetachedhouseandanyaccessorystructures/impervioussurfacesona.538acresitezoned Residential-4andlocatedat5207CoronadoDrive.

Planning Administrator Eric Hodge (sworn) stated the subject lots were the result of a recombination from one lot with a single family residence into 2 lots with the existing residence removed noting the demolition of the dwelling activated the stormwater provisions of TC-6-15. Mr. Hodge pointed out that prior to the adoption of TC-6-15 these lots would have been exempt from stormwater retention regulations. He stated TC-2-16, which would amend the stormwater regulations to exempt lots less than 1 acre in size, is set for a public hearing before the City Council on November 1, 2016 and indicated the Council could adopt the text change at that time and would put an end to other TC-6-15-related applications.

Mr. Hodge indicated that, as with prior TC-6-15 applications, Staff is not opposed to the request. He pointed out additional TC-6-15 cases will appear on today’s agenda (Clerk’s note: A-109-16 and A-110-16) and indicated his testimony will be the same for those cases as well.

Mr. Silverstein requested clarification that the existing dwelling had been demolished and that there was not ghost lot line involved with Mr. Hodge indicating that is correct.

Discussion took place regarding the City’s approval of the recombination with Mr. Hodge indicating the previous lot configuration had a land-locked lot.

Mr. Riemann questioned whether TC-2-16 would exempt these lots with Mr. Hodge responding the text change exempts lots less than 1 acre in size that are used for residential purposes, and went on to indicate the text change would also set maximum impervious surface restrictions for the various residential zonings. Mr. Riemann questioned whether the subject lots would meet the proposed impervious surface restrictions with Mr. Hodge indicating the Applicant could address that question and Mr. Silverstein indicating that could be made a condition for approval.

Discussion took place regarding how the adoption of TC-2-16 may affect previous TC-6-15-related applications and whether any of those applications would have to come back before the Board regarding impervious surface issues.

Applicant

Attorney Michael Birch, Morningstar Law Group, 1330 St. Mary’s Street, Suite 400, representing the Applicant (sworn), indicated the recombination took place in December 2015 and his clients purchased the lots in January 2016. He confirmed the existing single family residence had been removed, and went on to explain the variance request. He pointed out the Board had approved nearly 50 similar cases this year, and outlined his client’s hardships. In response to Mr. Riemann, Mr. Birch submitted a plot plan for each of the subject lots and indicated the impervious surface areas would be about 17.9% and 17.5% respectively.

Opposition

Dan Edgerton, 5108 North Hills Drive (sworn), pointed out his lot abuts a green space that abuts the rear of the of the subject lots. He pointed out an existing stormwater drain in the green space has silted up and now overflows onto his neighbor’s property and has washed out the driveway. He expressed concern regarding increased stormwater runoff from the subject lots.

Jake Livingston, 5204 North Hills Drive, talked about a couple of events over the previous year that, during 2 10-year storms, stormwater runoff had flooded across his gravel driveway, across the street, and onto a paved bike path. He talked about the amount of gravel he’s lost from the runoff and pointed his and his neighbor’s properties are situated downhill from the subject lots.

Mr. Riemann questioned who owns the green space with Mr. Livingston responding the City of Raleigh owns the green space with discussion taking place regarding whether the City maintains the stormwater facility in the green space.

Tom Parker, 5205 Coronado Drive (sworn), affirmed Mr. Edgerton’s and Mr. Livingston’s testimonies and presented photographs of the subject lots taken from his home and pointed out the lots have been barren since February 2015 when the existing dwelling had been torn down. He noted by March 2015 the silt fence had become overrun, and he reported the situation to City Staff. He went on to state the staff person had investigated the site, and had informed him a City ordinance requires ground cover to be installed; however, no ground cover has been provided since that time. He presented a photograph of the erosion on the subject property taken prior to the storm of October 8, 2016, and asserted the builder exhibited total disregard for the neighbors, the neighborhood character, etc. He expressed concern for property owners downstream from the subject properties regarding stormwater runoff.

Rebuttal by Applicant

Attorney Birch presented a topographic map of the subject properties and pointed out the existing stormwater draw and 24-inch drainage culvert in the green space. He asserted City Stormwater staff has been alerted regarding the culvert’s condition.

Mr. Riemann questioned when the culvert was constructed with Mr. Birch indicating he did not have that information available.

Mr. Conti questioned the lots’ impervious surface amount prior the recombination with Mr. Birch responding the amount was approximately 10%.

Discussion took place regarding proposed landscaping for the subject lots with Mr. Birch pointing out where the previous single family residence stood is now compacted soil. In response to questions, he pointed out the stormwater open draw and culvert locations on a map provided at the meeting. He went on to indicate his client submitted building permit applications and approval is pending the Board of Adjustment variance approval.

Rebuttal by Opposition

Mr. Edgerton stated North Hills Subdivision was built in 1962 and indicated the culvert was installed at that time.

Tara Corn, 5204 Coronado Drive (sworn), questioned the Applicant’s hardship pointing out the Applicant purchased the lots one month after the recombination and questioned whether the purchase was conditioned upon the recombination. She asserted if that were the case, the Applicant knew of the hardship prior to purchasing the lots, and therefore the hardship was created by the Applicant’s action.

Rebuttal by Applicant

Attorney Birch reiterated the recombination took place on December 17, 2015 and the properties were purchased in January 2016. He stated he has no personal knowledgewhether his client was involved in the recombination. He reminded the Board it has heard nearly 50 similar cases and pointed out in some of the cases the applicants performed the recombinations themselves. He urged the Board grant the variances.

Requests for Notification

None.

Findings of Fact

1.Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct new homes on a lot recently subdivided into 2 lots. These cases are consolidated for hearing because the Applicant and issues are the same in both cases.

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 existing home was demolished, which triggered the application of TC-6-15 which removed the exemption for the installation of stormwater controls previously existing for lots of less than 1 acre. These two lots are .552 and .538 acres.

6. 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.

7.The recombination eliminated a landlocked lot that was vacant.

8.As proposed, TC-2-16 would limit the impervious surface development to 38% of each lot in this R-4 zoning district. The impervious surface of structures proposed by Applicant will not exceed this limitation.

9.Strict compliance with the provisions of the ordinance would deprive Applicant of 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.It is necessary and appropriate to impose the following condition and safeguard on the issuance of the variance: the impervious surface of the structures on each lot cannot exceed 38% of the lot area.

6.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.

7.If the condition affixed hereto shall be held invalid or void, then this decision shall be void and of no effect.

Motion

Chairman McLamb moved to grant the variances for both lots with the condition the amount of impervious surface on each lot does not exceed 38% for Residential-4 zoning. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 4 (McLamb, Kemerait, Mial, Root); Noes – 1 (Conti). Chairman McLamb ruled the motion adopted on a 4-1 vote and the variances granted with conditions.

Mr. Silverstein pointed out since the subject lots are now vacant, landscaping will be installed in conjunction with the erection of houses on the lots, and pointed out the if the proposed TC-2-16 is adopted these variance requests would not be necessary.

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Mr. Silverstein indicated Ms. Kemerait would like to recuse herself from participation in the next application. Without objection, Chairman McLamb stated Ms. Kemerait was excused from participation. Ms. Kemerait left the table.

A-109-16 – 10/10/16

Decision:Approved with the condition the subject property does not exceed the maximum 38% impervious surface area for Residential-4 zoning.

WHEREAS,FitzgeraldFamily,LLC,propertyowner,requests completerelieffromtheactivestormwatercontrolmeasuresand requirementssetforthinSection9.2.2.oftheUnifiedDevelopmentOrdinancetoallowfortheconstructionofadetachedhouseandanyaccessorystructures/impervioussurfacesoneachofthetworesultinglots formedoutoftherecombinationofa.49acrepropertyzonedResidential-4andlocatedat3515BellevueRoad.

Planning Administrator Eric Hodge (sworn) explained the proposed recombination would take 1 lot plus 1 lot with a ghost line and create 3 new lots with a lot line passing through an existing structure. He indicated the recombination is currently under review pending Board of Adjustment approval. He stated Staff does not oppose the request and pointed out the existing single family residence has already been demolished.

Applicant

Attorney David York, Smith Moore Leatherwood, 434 Fayetteville Street, representing the Applicant (sworn), noted the Board has heard numerous versions of cases like this before, and confirmed Mr. Hodge’s testimony noting the existing dwelling has been demolished.

Mr. Riemann questioned the proposed impervious surface for the lots with Mr. York responding his Client proposes 50% impervious surface. Mr. Riemann requested noted that would exceed the proposed maximum of 38% under TC-2-16 with Mr. York indicating that is correct.

Opposition

Christine McLain, Managing Partner, Turnbridge Properties LLC (sworn), indicated the partnership owns the adjacent property at 3516 Turnbridge Drive and expressed concern regarding stormwater running off the rear of the lots due to construction and requested assurance there would be no additional stormwater runoff after construction.

Rebuttal

Attorney York indicated he spoke with John McLain, who is also a partner in the LLC, and stated that, according to his Client’s plans, stormwater runoff will be directed to Bellevue Road and not to adjacent properties.

Requests for Notification

None.

Findings of Fact

1.Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct homes on 2 of 3 lots 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 2 lots 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, and recombined the three separate parcels into two lots.

7. A proposed ordinance, TC-2-16, will restore the exemption that previously existed for lots this size.

8. 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 an interior property line.

9.The recombination will create a conforming lot, and will prevent the continuation of the nonconformity by removing the interior property lines.

10.The impervious surface improvements must comply with proposed TC-2-16, which would be 38% for each lot.

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.It is necessary and appropriate to impose the following condition and safeguard on the issuance of the variance: the impervious surface of the structures on each lot cannot exceed 38% of the lot area.

6.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.

7.If the condition affixed hereto shall be held invalid or void, then this decision shall be void and of no effect.

Motion

Chairman McLamb moved to approve the variance with the condition the amount of impervious surface on each lot not exceed 38% for Residential-4 zoning. His motion was seconded by Mr. Conti and received the following vote: Ayes – 5 (McLamb, Conti, Mial, Riemann, Root); Noes – 0. Chairman McLamb ruled the motion adopted and the variance granted with condition.

Ms. Kemerait returned to the table.

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A-110-16 – 10/10/16

Decision:Approved with the condition the subject property does not exceed the maximum 38% impervious surface area for Residential-4 zoning.