Raleigh Board of Adjustment Minutes
November 9, 2015
RALEIGH BOARD OF ADJUSTMENT MINUTES
The Raleigh Board of Adjustment met in regular session on Monday, November 9, 2015 at 1:00 p.m. in Conference Room 305 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
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)
Absent:
Brian Williams (City)
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 at today’s meeting.
RALEIGH BOARD OF ADJUSTMENT – BOARD SECRETARY – VACANCY – EUEGNE CONTI ELECTED AS NEW BOARD SECRETARY
Chairman McLamb indicated the first order of business is the Board is to elect a new Secretary to replace Tommy Jeffreys, who resigned at the end of the Board’s October meeting.
Chairman McLamb opened the floor for nominations. He nominated Eugene Conti for the position of Board Secretary. Ms. Kemerait seconded the nomination and Mr. Conti accepted.
No other nominations were received, thus Chairman McLamb closed the nominations, after which a vote was taken on Mr. Conti’s nomination with the following results: Ayes – 5 (McLamb, Kemerait, Mial, Root, Conti); Noes – 0. Chairman McLamb ruled the nomination approved on a 5-0 vote and Mr. Conti elected as the Board’s Secretary.
Chairman McLamb then read the rules of procedure, and swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, with Mr. Hodge using a PowerPoint presentation in aid in giving testimony.
The following applications were heard with actions taken as shown:
Chairman McLamb indicated the following 5 applications would be heard together as it involves adjacent properties dealing with the same issue.
A-75-15 – 11/9/15
Decision: Denied.
WHEREAS, Stephen Mallinson and Melanie Luques, property owners, request a variance from the requirements set forth in Section 7.2.8.b.2. and Article 9.1 of the Part 10A Unified Development Ordinance to allow a fence to be located in a Tree Conservation Area on a .16 acre property zoned Residential-10 and located at 455 Plainview Avenue.
A-76-15 – 11/9/15
Decision: Denied.
WHEREAS, Graham Dixon and Michael Amburn, property owners, request a variance from the requirements set forth in Section 7.2.8.b.2. and Article 9.1 of the Part 10A Unified Development Ordinance to allow a fence to be located in a Tree Conservation Area on a .16 acre property zoned Residential-10 and located at 459 Plainview Avenue.
A-77-15 – 11/9/15
Decision: Denied.
WHEREAS, Bradley and Jaime Beavers, property owners, request a variance from the requirements set forth in Section 7.2.8.b.2. and Article 9.1 of the Part 10A Unified Development Ordinance to allow a fence to be located in a Tree Conservation Area on a .13 acre property zoned Residential-10 and located at 501 Plainview Avenue.
A-78-15 – 11/9/15
Decision: Denied.
WHEREAS, Anthony and Ellen Hopkins, property owners, request a variance from the requirements set forth in Section 7.2.8.b.2. and Article 9.1 of the Part 10A Unified Development Ordinance to allow a fence to be located in a Tree Conservation Area on a .15 acre property zoned Residential-10 and located at 505 Plainview Avenue.
A-79-15 – 11/9/15
Decision: Denied.
WHEREAS, Kate Shanahan, property owner, requests a variance from the requirements set forth in Section 7.2.8.b.2. and Article 9.1 of the Part 10A Unified Development Ordinance to allow a fence to be located in a Tree Conservation Area on a .16 acre property zoned Residential-10 and located at 509 Plainview Avenue
Planning Administrator Eric Hodge (sworn) summarized the requests stating the applicants constructed a fence along the rear portion of their adjoining lots. He pointed out where the developer dedicated open space as well as the Tree Conservation Area (TCA) and noted the applicants built their fences without permits. He stated the Tree Conservation Ordinance (TCO) does not allow fences and buildings in the TCA’s as that could damage roots. He stated fence permit requirements began in 2013 and require the consent of the Public Works Director. He stated the City’s Tree Arborist investigated a fence permit on an adjacent lot and cited the non-permitted violation. He expressed staff’s concern regarding a possible precedent-setting decision if the variances were granted.
Christopher Crum, City of Raleigh Conservation Forester (sworn) used a PowerPoint presentation as an aid to giving his testimony; and outline of which is as follows:
Code References
· City of Raleigh Unified Development Ordinance UDO Sec. 9.1.6. Permitted Tree Disturbing Activities “No tree disturbing activity shall take place in designated tree conservation areas except in conformity with the following.”
· Allowed with a permit: Removal of unhealthy or hazardous trees, trees in a sight triangle, installation of public improvements, and wooded area clean-up
· UDO Chapter 12 Definitions: Tree Disturbing Activity = “Any activity that results in one or more of the following…movement of earth, stabilization of structures, tree removal, tree cutting, the placement within any tree conservation area any permanent or temporary encroachment including but not limited to storage of equipment or materials”
Other UDO References
· Sec. 3.5.3.D.5. – Fences cannot be located in tree conservation areas
· Sec. 7.2.4. – Transition and street protective yards may be replaced with TCA and no wall, fence, or berm can be built in a TCA
· Sec. 5.3.1. – Trees cannot be planted in TCA, Shrubs must be planted outside TCA, fences cannot be in the TCA, berms cannot be built in a TCA
· Sec. 7.2.7. – Trees cannot be planted within a TCA and shrubs must be planted outside of a TCA
· Sec. 5.2.2.C.1. – Same area required as primary TCA does not allow tree or land disturbing activity, animal pen, structure, or stormwater facility
Procedure
· UDO Sec. 10.2.7. – Requires a Plot Plan to be submitted for a fence construction. All items required to submit a plot plan have a permit issued by the City of Raleigh per UDO Sec. 11.4.1.H.
· No plot plans were submitted
· No permits were issued for the fences
Fence Requests
· While these properties did not contact the City prior to constructing a fence, this is a frequent request the Foresters get either on the phone or on plans submitted.
Pending
· The City has requested a plot plan be submitted showing the fence outside of the tree conservation area, a fence permit be obtained, and the fence be constructed in an approved location; additionally a $100 civil penalty to be paid
· A fence can be constructed, just not within the last 20 feet of the properties
· Removal of the fence can be done so that no further impact to the tree conservation area occurs
Clerk’s note: the PowerPoint presentation included maps of the subject properties outlining the TCA, as well as photographs of the subject fences, and fence posts erected adjacent to mature trees. The presentation also included maps suggesting alternate locations for fences outside the TCA.
Chairman McLamb questioned whether the City ever issued fence permits for inside the TCA with Conservation Forester Crum responding in the negative. Ms. Kemerait clarified that fence permits have been required since 2013 with Mr. Crum indicating that was correct.
Mr. Mial questioned whether the TCA’s were considered part of the subject properties or the common area with both Conservation Forester Crum and Planning Administrator Hodge responding the TCA’s were incorporated into the subject lots.
Chairman McLamb questioned the type of residences located on the opposite side of the TCA with Planning Administrator Hodge responding single family residences.
Ms. Kemerait questioned the status of a fence permit for a property located to the north of the subject properties with Planning Administrator Hodge responding that permit involved a utility easement; therefore, that application was denied.
Mr. Mial questioned whether the homeowners association approved the fences with Planning Administrator responding the applicants could answer that question; however that would not absolve fence/TCA issue.
Mr. Conti questioned whether there was a fence installed on Lot 8 with Planning Administrator Hodge responding in the negative.
Applicant
Attorney Jim White, Shanahan Law Group (sworn), submitted a packet of information in support of his clients’ case.
Kate Shanahan, 509 Plainview Avenue (sworn), in response to questions from Attorney White, verified she had approached the homeowners association and it approved the fence construction. She indicated had she known a City permit was required she would have obtained one.
Chairman McLamb questioned whether the Builder constructed the fence with Ms. Shanahan responding the fence was built by a contractor and asserted that moving the fence would render her yard unusable. She went on to express concern for her safety due to foot traffic in the neighborhood noting prior to the fences’ construction people would cut through her and her neighbors’ back yards as the TCA creates an open alley. She also expressed concern with crime in her neighborhood and talked about recent car break-ins. Chairman McLamb questioned whether there were other rear yard fences in the neighborhood constructed outside the TCA with Ms. Shanahan responding in the affirmative; however, not all of them.
Attorney White referred to a map of the neighborhood included in the information packet and also noted the packet contained sworn and notarized affidavits in support from the following applicant and adjacent property owners:
Jeffrey Phillips 745 Birch Arbor Circle (adjacent owner)
Robert C. Howard 736 Birch Arbor Circle (adjacent owner)
Kate Shanahan 509 Plainview Avenue (applicant)
Anthony Hopkins 505 Plainview Avenue (applicant)
Graham Dixon 459 Plainview Avenue (adjacent owner)
Bradley Smith 740 Birch Arbor Circle (adjacent owner)
Teresa Kincaid 728 Birch Arbor Circle (adjacent owner)
Whitney Wolejko 724 Birch Arbor Circle (adjacent owner)
Daniel Seeler 717 Birch Arbor Circle (adjacent owner)
Jennifer Guiffre 713 Birch Arbor Circle (adjacent owner)
Stephen Mallinson 455 Plainview Avenue (applicant)
Bradley Beavers 501 Plainview Avenue (applicant)
Peter J. Chenery 1615 Weatherford Circle (adjacent owner)
Mark Laney 732 Birch Arbor Circle (adjacent owner)
Jennifer A. Paul 427 Plainview Avenue (adjacent owner)
Brian Rickard 431 Plainview Avenue (adjacent owner)
Jennifer W. Stele 437 Plainview Avenue (adjacent owner)
Michael Billard 438 Plainview Avenue (adjacent owner)
Timothy Cunningham 447 Plainview Avenue (adjacent owner)
Benjamin H. Whitley 435 Plainview Avenue (adjacent co-owner)
Azura Dee Holland 435 Plainview Avenue (adjacent co-owner)
Elizabeth Parker Harris Oakwood North (no address listed)
Ms. Shanahan talked further about how people cross her and her neighbors’ lots from St. Augustine’s University over to Tonsler Drive and nearby State Street.
Guy Meiller, Better Tree Care Associates, P. O. Box 1287, Apex, NC (sworn), in response to questions from Attorney White, stated he was the contractor and consultant and stated he has been a Board-certified Master Arborist for 30 years. He stated he visited the applicant lots and observed no damage to the trees. He went on to read the following report included in the information packet:
Hopkins Oakwood North Report on Fence and Trees
ASSIGNMENT
I was asked by Ellen Hopkins to: Inspect the wooded area at five contiguous properties at 505 Plainview Avenue, Raleigh, NC 27604. Review plans and forms and ordinances. Inspect fence and site. Review potential impacts of and alternatives to moving fence. Prepare affidavit citing factors for variance. Present to City at BOA hearing 9/11/15.
I am limited by time, equipment, evidence of original site conditions, and conditions noted in the appendix.
OBSERVATIONS
New homes include a wooded area in the back yard, running parallel to the street. A swale was dug outside the area, channeling runoff. The canopy trees are a mix of native Pinus tadea, Acer rubrum, Liriodendon tulipifera, Magnolia grandiflora and Ilex sp. are seen in the understory. The pines show no signs of fusiform rust or pine beetles, their 2 primary pests. The maples show some signs of gloomy scale. Some trees are bent, away from the street. The other trees appear in good health. The trees form a discontinuous canopy, with limited stability as a grove.
DISCUSSION
As the trees mature, they will grow and bend toward the clearing and the houses, so structural pruning will be required for a reasonable level of safety for the trees, people, and property. Gloomy scale and other pests can affect safety as well. Regular monitoring and necessary treatments can avoid tree failure and loss. Filling in the open areas will shade and build the soil, lower the future risk of bending and failure, and improve the health of the grove.
One factor favoring a variance in this case: The fencepost installation disturbed soil and roots, but the posts were positioned to avoid damage to large roots. New fencing installed on the line would unavoidably cut more roots. At least 8 new holes, 8” wide, would equal 64” of roots cut per residence. If the five residents put the fence on the line, 320” more roots would be lost to a new fence. The trees have had very little time to respond to the grading done to complete the swale. A loss of roots from 40+ fence posts being installed on the line could be significant in terms of health and stability.
MITIGATION OPTIONS
1. To compensate for d1e disturbance to the tree roots, residents shall maintain a layer of 2” - 4” of mulch over the entire tree preservation area. Mulch shall not contact the tree trunks.
2. No existing trees shall be removed unless they die and a permit is obtained. Retaining dead trees at a reasonable height to preserve wildlife value shall be preferred.
3. No existing trees shall be pruned unless necessary for safety and a free permit is obtained.
4. The existing tree cover shall be supplemented with compatible trees, such as Magnolia and Prunus, and compatible smaller plants, such as Vaccinium and 1lex. Two trees and four shrubs per residence would fill in most of the gaps in a fairly short time.
5. No heavy equipment or machinery shall enter the areas.
6. Planting shall avoid disturbing any root 1" or larger.
This concludes my report. I can clarify portions of it upon request.