Board of Adjustment Minutes
December 8, 2014
RALEIGH BOARD OF ADJUSTMENT MINUTES
The Raleigh Board of Adjustment met in regular session on Monday, December 8, 2014 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, Jr. ViceChairman (City)John Silverstein, Attorney to the Board
Tommy Jeffreys, Secretary (County)Assistant Planning Director Travis Crane
Timothy Figgins (City)Planning Administrator Eric Hodge
Karen Kemerait (City Alternate)Assistant Deputy Clerk Ralph Puccini
Brian Williams (City Alternate)
Absent
Charles Coble, Chairman (City)
Gene Conti (City)
These are summary minutes unless otherwise indicated:
ViceChairman McLamb called the meeting to order, introduced members of the Board and staff present at today’s meeting and read the rules of procedure.
Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge were both sworn in with Mr. Hodge using aPowerPoint presentation in aid to presenting testimony, and the following items were discussed with actions taken as shown:
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A-69-14 – 12/8/14
Decision:Approved a 14 foot variance.
WHEREAS,FranklinandJaniceSpears, propertyowners,requesta 20.1footprimarystreetsetbackvariance fromtheregulationssetforthinSection2.2.1oftheUnifiedDevelopmentOrdinancetoallowanaccessorystructuretobesitedsuchthatitresultsina29.9footprimarystreetsetbackonapropertyzonedResidential-4andlocatedat7613PatsBranchDrive.
Planning Administrator Eric Hodge (sworn) indicated this is a continuation of a case that was first heard during the Board’s October 13, 2014 meeting and pointed out the issue is the storage shed located in the front yard. He stated the applicants were asked to consider alternative locations for the shed.
Applicant
Attorney Paul Stam, 510 West Williams Street, Apex (sworn) reviewed the request and stated the original request for a 20.1 foot variance is now reduced to 14 feet. He stated if his clients were forced to go to 4 feet they would have to remove a mature tree. He stated the shed’s original location was next to the dwelling, which was itself a violation of City code.
Frank Spears, 7613 Pats Branch Drive (sworn) presented a video of recent stormwater runoff running across his property in a man-made creek bed. He pointed out Ebenezer Church Road is located in the County while his property is located inside the City limits. He pointed out the landscape architect installed the landscaping according to City of Raleigh regulations in force at that time; however, those regulations changed during the time of installation. He pointed out the changes made to his yard including the current shed location and pointed out the shed’s roof barely shows 2 feet above street level. He stated he planted trees to eventually screen the shed from Pats Branch Drive. He stated the previous owner was a member of North Carolina State University’s Agriculture Department and pointed out a tree planted by the previous owner adjacent to the shed. He stated he would like to avoid cutting down the tree to move the shed. In response to questions, Mr. Spears stated he is handicapped and stores his Segway and other mobile devices in the shed. He asserted everything was done in good faith and the landscape architect was following all the rules.
Mr. Silverstein questioned the shed’s dimensions with Mr. Spears responding the shed is approximately 11 x 16.
Ms. Kemerait questioned if the shed were moved farther from the street whether any trees or shrubs would be removed with Mr. Spears responding only the tree would be removed.
Vice Chairman McLambquestioned whether there was anything else that prevented moving the shed with Mr. Spears responding Zoning Inspector Robert Pearce visited the site and noted the shed was in the only place where it could be located.
Mr. Jeffreys questioned whether any additional landscaping could be planted between the shed and the street with Mr. Spears responding in the affirmative and added he would be agreeable if that were a condition for approval
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks a variance from UDO §2.2.1 to allow an accessory structure to be sited in a front yard.
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 fifty foot front yard setback.
6.Applicant is unable to comply with UDO §2.2.1 because the topography of the property prevents the shed from being located outside the setback.
7.Applicants have undertaken a landscaping project to correct drainage problems but redirecting the flow of water across their lot, featuring additional plantings to screen a storage shed that is 11’ by 16’.
8.The placement of the storage shed was dictated by the topography of the lot and an effort to save a large tree.
9.Applicant has reduced his original request for a 20.1’ variance to 14’.
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 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.
4The 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
Vice Chairman McLamb moved to approve a 14 foot variance. His motion was seconded by Mr. Williams and received the following vote: Ayes – 5 (McLamb, Williams, Jeffreys, Figgins, Kemerait); Noes – 0. Vice Chairman McLamb ruled the motion adopted and a 14 foot variance granted.
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A-74-14 – 12/8/14
Decision:Approved a 10 foot variance.
WHEREAS,AshGreyProperties,LLC,propertyowners,requestavariancetothetransitionalprotectiveyardplantingrequirementsofSection10-2082.9ofthePart10ZoningCodetoreducethewidthofthe required40'typeAtransitionalprotectiveyarddownby15'foralinearspanof195'andutilizetheexistingvegetationtomeettheplantingrequirementsresultingina15'widetransitionalprotectiveyardwithexistingvegetationforpropertieszonedlndustrial-1andlocatedat8337,8341and8345EbenezerChurchRoad.
Planning Administrator Eric Hodge (sworn) indicated this case first came before the Board in 2013 as a request to develop 2 land-locked parcels, and that the development now includes a third, street-front parcel. He stated the issue is the buffer to the far west of the property. He stated the subject property is used by a trucking company and pointed out an adjacent townhouse community to the south. He stated a the request is for 10 foot reduction in the Transitional Protective Yard (TPY) with a protective wall. He pointed out the residential parcel sits above the subject properties and noted the TPY issue arose during the building permit application process.
Applicant
Attorney Todd Jones, 1305 Navaho Drive, Suite 303, Raleigh, NC 20609 (sworn), representing the applicant, explained the request stating a closed fence runs approximately 300 feet along the southern property line and a screened fence runs approximately 15 to 50 feet from the property line. He stated his client requests to leave the screen fence and vegetation in place as the TPY, and asserted staff indicated the present situation was better than a solid fence for both his client and the adjacent property owners. In response to questions, Mr. Jones stated the current amount of vegetation in the TPY is greater than what the City Code requires.
Jon Callahan, John A. Edwards and Company, 333 Wade Avenue (sworn), stated his client could meet Code standards with a solid fence; however, the current screen fence is 20 feet high and the existing vegetation would not reflect sound.
Discussion took place regarding how sound from the trucks would be affected with a solid fence with Mr. Callahan pointing out the trucks would be taller than a required solid fence.
Kimberly Saran, landscape architect, (sworn) talked about the existing screen fence’s location and composition pointing out the fence was already in place when her client purchased the property. She stated her client would prefer to not replace the taller fence with a shorter solid fence, and went on to talk about the property’s topography and how portions of existing pavement would have to be removed to install a solid fence.
Discussion took place regarding the amount of variance requested with Attorney James pointing out the affected portion of the fence is located furthest west along the southern property line.
Mr. Hodge indicated Staff is of the opinion a variance is needed and stated there have been discussions between the developer and the neighbors regarding noise concerns. He also pointed out the present screening was better than a solid fence.
Opposition
Nicholas Siwi, 8626 Redcrest Place, (sworn) stated Turner Asphalt moved to its present site 3 years ago without the proper permits. He talked about dealing with the Raleigh Police Department regarding noise issues from as early as 5:00 a.m. He talked about recent confrontations with the developer and pointed out the developer will be adding 8 parking spaces up against the property line. He talked about how the subject property could be seen through the present screening, and talked about meeting with Turner Asphalt’s attorney regarding adding conditions to the variance request and that Turner Asphalt responded by indicating they would not add the conditions. Mr. Siwi pointed out there have been over 60 calls to the subject property in the first 12 months since meeting with attorney 3 years ago.
Discussion took place regarding the type of conditions that could be placed on the variance with Mr. Siwi pointing out the variance would allow the trucks to park 30 feet from the back doors of the residences.
Rebuttal by Applicant
Attorney Jones pointed out Ash Grey is the property owner and that Turner Asphalt is the tenant. He noted the variance request is for the use of the property, and asserted what his client is asking for would be a greater benefit for the neighbors. Mr. Figgins requested clarification that the 10 foot variance would be a benefit to the neighbors with Attorney Jones indicating that is correct.
Discussion took place regarding the actual variance requested versus what the City Code requires, as well as whether pavement would have to be removed to install additional landscaping.
Mr. Silverstein pointed out the 2013 request was denied due to lack of street access with Attorney Jones pointing out his client purchased the adjacent property to the east in order to obtain street frontage.
In response to questions, Ms. Saran talked about the present fence’s composition noting it is a wood slat fence. She submitted a photograph of the existing fence and pointed out the existing mature vegetation located along a creek bed. She asserted it would be best to leave the fence and vegetation as is rather than placing it all with a solid fence and new vegetation.
Rebuttal by Opposition
Mr. Siwi pointed out the owner of Ash Grey properties is also the owner of Turner Asphalt.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks a variance from Raleigh City Code Section 10-2082.9 to reduce a transitional protective yard for a distance of 195’ along a property line.
2.The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.
3.In order to comply with the zoning condition, Applicant would have to install a 40’ Type A transitional protective yard adjacent to a townhouse community.
4. In order to comply with the protective yard requirements, Applicant could remove an existing 20’ high slatted fence and replace it with a solid 10’ fence.
5.The purpose of the transitional protective yard screening requirements would be to screen Applicant’s trucking operations from the adjacent residential property.
6.There is existing vegetation between the properties that exceeds what Applicant would be required to install in the transitional protective yard.
7.The existing 20’ fence and vegetation afford better screening than a 10’ solid fence and protective yard plantings.
8.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
9.Applicant's hardship is related to the unique circumstances of the property, namely the existence of screening that exceeds code requirements.
10.The Applicant's actions did not create the hardship.
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.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.
(d)The relation of the proposed application to conditions in the vicinity which have changed since the zoning district was originally determined.
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 property owner.
4.The variance is consistent with the spirit, intent and purpose 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 Chapter 10 of the Raleigh City Code 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 a 10 foot variance. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (Williams, Kemerait, McLamb, Jeffreys, Figgins); Noes – 0. Vice Chairman McLamb ruled the motion adopted and the 10 foot variance granted.
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A-79-14 – 12/8/14
Decision:Approved as requested.
WHEREAS,TelegraphRoadProperties,LLC,propertyowner,requestsa3.6'sideyardsetbackvariance,a4.1'aggregatesideyardsetbackvariance,an8.1'aggregatesideyardsetbackvariancefromthestandardssetforthinSection10-2075of thePart10ZoningCodeaswellasavariance fromtheoff-streetparkingrequirementssetforthinSection10-2081ofthe Part10ZoningCodetoallowfortheconstructionofanewprimarystructureresulting ina1.4'sideyardsetbackandan10.9' aggregatesideyardandnooff-streetparkingspacesonpropertyzonedResidential-20andNeighborhoodConservationOverlayDistrictandlocatedat508WorthStreet.
Planning Administrator Eric Hodge (sworn) noted the application packet reflected the original request; however, the application was re-advertised due to the amount of demolition done to reflect the construct a new dwelling. He pointed out the proposed structure would be in keeping with the surrounding dwellings, and that Staff is not opposed to this request.
Applicant
Attorney Garland Askew, 333 Fayetteville Street, (sworn) representing the Applicant, reviewed the request pointing out his client performed a about 40 renovations throughout the city and have 15 currently in progress. He stated the builder de-constructed the building due to issues with dry rot, termite damage, etc. with the intention of replacing with new materials. He stated in this case, the builder went too far with the de-construction, and so now his client has to file for new construction. He indicated his client seeks to replace the original structure utilizing the same footprint. He pointed out the lot is only 27 feet wide; so only a shotgun style home is possible. He stated the variance would allow a new structure on the original footprint and also remove the off-street parking requirement.
Discussion took place regarding how approximately 50 percent of the residences in the neighborhood have off-street parking with Mr. Hodge pointing out the original dwelling had a curb cut on Worth Street; however, the required minimum 18 foot depth for a driveway would not be met as the dwelling would be too close to the street.
Opposition
None.
Requests for Notification
None.
Findings of Fact
1.Applicant seeks a variance from Raleigh City Code Sections 10-2075 and 10-2081 to construct a dwelling on an existing lot.
2.The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing.
3.In order to comply with Raleigh City Code Sections 10-2075 and 10-2081, Applicant would have to provide a 5 foot minimum side yard setback, a 15 foot aggregate side yard setback and off-street parking.
4.Applicant is unable to comply with Raleigh City Code Sections 10- 2075 and 10-2081 because the lot does not meet current code requirements for lot density and width.
5.This property is located on Worth Street in a neighborhood that is undergoing redevelopment, and many homes therein are legal nonconformities.
6.The size of the lot prevents the provision of parking on site.
7. A dwelling previously existed on this lot, and Applicant wishes to use the same footprint.
8.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.
9.Applicant's hardship is related to the unique circumstances of the property, namely its nonconforming status.