Minutes of the Minnesott Beach Board of Adjustment A meeting of the Board of Adjustment, Town of Minnesott Beach, was held on Tuesday, September 14, 2010, at the Minnesott Beach Town Hall. MEMBERS PRESENT: Chairman Josh Potter, Mr. Dave Stewart, Mr. Eber Warren and Mr. Larry Whorton. MEMBERS ABSENT: Mr. Tim Fowler OTHERS PRESENT: Richard Skreba, Addie Durham, Joe and Dale Clark, Janice Mills, Bruce Goodman, Jack Bobel, Mike Calderaro, Charlene Lamb - Town Clerk and Catherine Hurm - Town Manager. Chairman Potter called the Board of Adjustment to order. A quorum was confirmed. of Adjustment. Chairman Potter advised it takes four (4) votes to do business by the Board Chairman Potter then proceeded to offer clarifying statements for a quasi-judicial hearings noting that the rules have changed a little bit but quasi-judicial hearings, sometimes called evidentiary hearings, are more formal than legislative hearings. Legislative hearings are for dealing with the town ordinance and that sort of thing. This is more of a court/semi-court type situation. These hearings are more demanding on those who participate in them. Chairman Potter then read the following: The purpose of this hearing is to hear the Application for a Variance by Robert W. Carr, Jr. and Marjorie B. Carr from the decision of the Zoning Administrator concerning Article VIII, Section 8.2, (3b), of the Town of Minnesott Beach's Unified Development Ordinance as it applies to Section 2, Lot 1 Indian Bluffs, recorded in Map-book 10, page 43, otherwise known as 108 Indian Bluff Drive, Minnesott Beach, Parnlico County, N.C. Article VIII, Section 8.2 (3b) reads as follows: No accessory building shall be started until the principal use building is 80 percent completed. Exception: Concrete footings and slabs of accessory buildings may be poured simultaneously with the footing of principal building. That is the ordinance. Chairman Potter noted that the Carrs were not present but the Board had their application for a variance which Chairman Potter then read as follows: This is the Town of Minnesott Beach, State of North Carolina, Application for a variance, August 11,2010. To the Town of Minnesott Beach Board of Appeals/Board of Adjustment: We, Robert W. Carr, Jr. and Marjorie B. Carr, hereby petition the Board of Appeals for a variance from the literal provision of the Town of Minnesott Beach Zoning Ordinance because, under the interpretation given to me by the Zoning Administrator, I am prohibited from using the parcel of land described below to build a tool shed in a manner shown by the attached plot plan. Chairman Potter noted that there was an attached diagram of the lot and what they want to build. Chairman Potter continued to read: I request a variance from the following provisions of the ordinance, variance from UDO Article VIII, Section 82, 3b which states that no accessory building shall be started until the principal use building is 80 percent complete. So that the above mentioned property can be used in a manner indicated by the attached plot plan, or as more fully described herein: to build a tool shed to service a vegetable garden for the life of Robert W. Carr Jr. and Marjorie B. Carr. lof8
Facts relevant to the issuance of a variance: the Board of Appeals/Board of Adjustment does not have unlimited discretion in deciding whether to grant a variance. Under the state enabling act, the Board is required to reach three conclusions as a prerequisite to the issuance of a variance: first - that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, two - that the variance is in harmony with the general purposes and intent of the ordinance and preserves its spirit, and thirdly - that in granting ofthe variance the public safety and welfare have been assured and substantial justice has been done. In the spaces provided below, indicate the facts that you intend to show and the arguments that you intend to make to convince the Board that it can properly reach these three required conclusions. In a) first conclusion: There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. Now the courts have developed three rules to determine whether in a particular situation "practical difficulties or unnecessary hardships" exist. State facts and arguments in support of each of the following: First rule is - If he, the owner, complies with the provisions of the ordinance, the property owner can secure no reasonable return from or make no reasonable us of, his property. (It is not sufficient that failure to grant the variance simply makes the property less valuable). Mr. Carr has written here: As a matter of practicality to support, this is the hardship, as a matter of practicality a grower or gardener rather, would prefer to have his tools, his garden tools and materials "on site" rather than down the road. That's to support conclusion one. To support conclusion two which reads: The hardship, this is the second rule, the hardship of which the applicant complains results from unique circumstances related to the applicant's land (hardships suffered by the applicant in common with his neighbors do not justify a variance. Also, unique personal or family hardships are irrelevant since a variance, if granted, runs with the land.) In support of that rule he has written: The workshop, can't hardly read his writing, the hardship is "the convenience" the tool shed would be for us if it were allowed to be built. Rule three in support of the hardship: The hardship is not the result of the applicant's own actions. In support of that he has written - We are not going to build a house on this property in order to meet the present requirements to build a tool shed. So those are the three rules and that's the first conclusion about hardships and difficulties. The second conclusion the board must meet, must affirm is: The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. (State facts and arguments to show that the variance requested represents the least possible deviation from the letter of the ordinance that will allow a reasonable use of the land and that the use of the property, if the variance is granted, will not substantially detract from the character of the neighborhood.) In support of that conclusion is written: We have no desire or plans to build a house on this site. We do not feel a small tool shed will detract from the land. See attached letter and he has written a cover letter here, I'll read that: Preamble to the request for a variance. To whom it may concern - My wife, Muff, and I are not strangers to Pamlico County or Minnesott Beach. Indeed we have been visiting this area continually since 1958, first as campers at Camp Sea Gull and Camp Seafarer and then later as counselors, and now Muff continues to volunteer for the Camp as a Camp Doctor for a couple of weeks each summer at Camp Seafarer. During our many summers at Camp we fell in love with the Neuse River and particularly Minnesott Beach. We knew at some point we wanted to have a home at Minnesott on the River. 20f8
September 14, 2010 About fifteen years ago we were fortunate to find THE PLACE of our dreams - 47 Indian Bluff Drive! It is not considered a vacation home by us, but more as a "second home". We travel from Raleigh to visit every weekend 52 weeks every year! As we grow toward retirement we hope to be able to spend even more time at our second home. For years we attempted to have a vegetable garden at 47 Indian Bluff Drive, but the shade in the front yard, and the wind and lack of space in the back yard prevented any success in this endeavor. Recently we purchased the lot at 108 Indian Bluff Dive specifically to make another attempt at a vegetable garden. This past spring and summer we had our first garden on this lot and we learned a lot! (You can't manage a vegetable garden from Raleigh, by attending to it only on weekendsl) The attached request is for a variance to have a small tool shed built in the back corner of our lot to house our tools and materials for convenience to service our garden. The tool shed (sketches attached) was designed by my father, Robert W. Carr, who is a registered architect in North Carolina. In other words the tool shed that we are proposing is not a store bought structure. We want the tool shed to enhance the property - not detract from it. With modesty aside I believe most will agree that what Muff and I have done to the property at 108 Indian Bluff Drive has made it even more attractive and we will continue to add plants and trees as we can afford. Again this tool shed that we are requesting permission to build will help us with this project. Thank you for your kind consideration of our request. With best personal regards. Robert W. "Judge" Carr, Jr. - Marjorie B. "Muff' Carr, MD Okay, so that's the interlude in there, see the attached letter, We do not plan to store boats on this property. This is all under the general purpose and intent of the ordinance and preserves its spirit. The third conclusion is: The granting of the variance secures the public safety and welfare and does substantial justice. State facts and arguments to show that, on balance if the variance is denied, the benefit to the public will be substantially outweighed by the harm suffered by the applicant. There is no comment to support that conclusion. I certify that all of the information presented by me in this application is accurate to the best of my knowledge, information and belief. Robert W. Carr, Jr. 8/11/2010. That is the application for variance. Now the process for this hearing will be as follows: All persons wishing to address this Board on the matter before it must be sworn in by the Chairman or appointed member prior to any testimony being given. This include town officials and the applicant. No testimony or comments will be accepted from any individual who has not been sworn in and all such comments will be ruled out of order and stricken from the record. No one will be allowed to be sworn in after testimony begins. The Board will hear the statements of the Zoning Administrator or designee on this application. Following that, the Board will hear the statements of the applicant. No interruptions from the audience will be permitted during the taking of testimony. After both the Zoning Administrator or designee, and the applicant have presented their information, the Board will receive testimony from others. Each testifier must have been previously sworn in and will state their name for the record. We request that testimony be kept brief and limited to the issue before us. 30f8
After hearing all parties, the Board of Adjustment will render its opinion. In order for a variance to be granted, at least 4/5's, 4 out of 5 of the voting members must agree that the applicant has satisfied each of the conclusions necessary to grant a variance. If the applicant fails to satisfactory prove any of the necessary conclusions by a 4/5's vote, then the variance cannot be granted. So, I will now at this time ask those persons that have signed up here and anybody else who wishes to speak during this hearing to line up here at the table and we will swear you in to hear your testimony. If you will, place your left hand on the Bible. Raise your right hand. Do you solemnly swear that the testimony you shall give to the Board of Adjustment in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God. Unanimous response of I do's. Okay, if you'll just, I think everybody signed, if anybody hadn't signed will you just sign there. Thank you very much. As it's been said already, the Board of Adjustment, we do not have unlimited discretion in deciding whether to grant a variance. Under the enabling act, the Board is required to reach these three conclusions again, (a) that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. Those rules the Board read, (1) ifhe complies with the provisions of the ordinance, the property owner can secure no reasonable return from, or make no reasonable use of his property. (2) The hardship results from the application of the ordinance. (3) The hardship is suffered by the applicant's property. (4) The hardship is not the result ofthe applicant's own actions. (5) The hardship results from unique circumstances related to the applicant's land. The second conclusion - that the variance is in harmony with the general purposes and intent of the ordinance and preserves its spirit. And thirdly, that in granting of the variance the public safety and welfare have been assured and substantial justice has been done. So first of all we will hear from the Zoning Administrator's designee, our Town Manager, Cathy Hurm. She will present Jeff Bland's side. I have here Mr. Carr's application for a zoning permit, application number 5-10-1, in which he requested a storage shed for gardening tools, equipment and supplies. On 5/5/1 0, Jeff Bland denied the permit noting Article VIII, Section 8.2, 3b, which states that no accessory building shall be started until the principal use building is 80 percent complete. So it was denied on that point and Mr. Carr was so advised. Chairman Potter - Any questions of Ms. Hurm concerning the Zoning Administrator's findings. Now we will hear from the applicant. Is Mr. Carr in the office? Mrs. Carr? They are not in the office, so now we will hear from those - we will take the testimony he's got on his application. That's all we've got. Now we will hear from the roll - testimony of sworn witnesses. First of all we have Ms. Addie Durham. I am Addie Durham, I have very little to say other than the fact that I am completely against it and I think Joe Clark - I agree with what he has and I agree with every word of it. Chairman Potter - Okay, Thank you very much, Ms. Addie. Second signed here is Joe Clark. Joe Clark - Members of the Board of Adjustments, residential continuity in our town and community has been maintained for many years by the basic laws and compliance by our citizens and property owners. The quiet residential nature and quality of life has not been interfered with by none permitted uses of property which would be detrimental to the overall primary purpose of the neighborhoods. After driving through every street in Minnesott today that was 40f8
Board of Adjustment initially zoned single family residential, all vacant lots are mostly wooded and natural with no distractions such as accessory buildings, garages, green houses, play houses, storage buildings, workshops, miscellaneous material or equipment stored in the open. A primary reason such distractions which contribute to neighborhood degradation hasn't occurred in our community, is the Section 8-2 that all of you have had and heard read in front of you. That is the Unified Development Ordinance, even though that has a date within a year or two, it is a combination of the laws of the Town of Minnesott, back basically to its founding. In Section 8-2 of that ordinance, says no accessory building shall be started until the principal use building is 80 percent complete, the section you have heard already. For years this has insured the residential continuity by permitting, not permitting vacant lots to be used for utility type purposes. The lot owners justification on the application for variance you have heard categorically read by the senior member of the Board of Adjustments. Basically it says they want to build a tool shed for a vegetable garden for the owners life duration. The shed itself is one issue, the vegetable garden issue is another one that should eventually, after the results of the Board are known, be looked at to see if it's in compliance. They practically think that having materials on site is better than having them down the road and they want it for convenience - no other justification. Additionally, the primary reason, a primary reason that we have maintained continuity is that a principal building had to be built on a vacant lot before you could go to the accessory building or use that lot. Here is another key point. This is not just about Indian Bluff Drive. If the variance were granted it would set for the first time within Minnesott a legal precedence of allowing accessory buildings for uses before the structure is 80 percent complete. The result of this would mean that it directly compromises the primary residential zoning, to residential and accessory joint uses. All our districts would be compromised, potentially eliminating primary residential. Soon you will vote on the merits of the appeal. The State law and Minnesott law are specific as to what justification must exist before a variance can be granted. How our neighborhood, doesn't need a mixture of single residency and utility/hobby type lots. This would destroy the residential continuity which is vital to our street and town. No one questions the background of Mr. and Mrs. Carr, they have high credibility. We simply ask that you support the laws and keep our community on track for the best of all of our citizens and the property owners in Minnesott. Additionally, we request that you require the property in question to be in full compliance as are the owners of the entire street. Thank you. Chairman Potter - Thank you very much, Mr. Clark. Next we have Ms. Janice Mills. Yep, that would be me. I have a - Chairman Potter - state your name. Janice Mills. I have a question the Zoning Administrator type question or just in general I have one question and then I have my comment. Is, were the Carrs ever questioned or given exemption to buy this land and put a garden on it? Is that something they just did. They didn't have to go and get permission to do this or - Chairman Potter - We're hearing you. We're not responding to. Ms. Mills Okay, that's my first comment. My question is the validity of them even creating a garden on their own and my other comment, I am sorry that their particular property that they do own doesn't give them the option of putting a garden on their perfect property. Okay. Apparently it's not perfect because if it were it would allow a garden. Okay. So I have really deep concerns that they haven't shown the test of time of what it requires to maintain a garden upon an ongoing year in - year out basis, and that we still front a major risk in the deterioration of that land or that property that he's cleared and put umpteen thousands of dollars into if they physically cannot continue to maintain it. At this point they want the additional luxury of having a tool shed and I think these are great plans, etc. but in reality I don't know if, I would like to see them have permission because I think it would help them to take care of the land 50f8
that they've started to do this with but at the same time I totally agree with Joe because I think to me at this point it's a risky endeavor still on their part and I don't know how much further we should invest in this plan of theirs. Because this is purely their little ideal plan and really isn't continuous with the rest of the area as it has been explained. Chairman Potter- Thank you very much for your comments. Bruce Goodman. Thanks, I'm Bruce Goodman. I agree with everything he said - Joe said. I love Minnesott Beach. I love where I live and everything. I came here twenty years ago and I want to die here and be poured in the river but I think it comes down to what the law says. I mean this isn't - the Carrs are great people and the garden they put in and everything. I live about two blocks away from it. It's beautiful you know and I'd sort of rather have that there - that house you know - because it keeps the openness and everything. But as Joe stated the thing we have to worry about is when the next person comes around and wants to do it. Now, I have some lots, I have two rental properties and my house is there and I'm concerned that the things he says. The next person that comes in says well you did it for him, why can't you do it for me. So in a nutshell that's my comment. Chairman Potter - Thank you Mr. Goodman. Chairman Potter - Mr. Jack Bobel. My name is Jack Bobel, I'm on the Board of Directors for and I represent the members of the South Lake Property Association. We're sure that when/if the Carrs build this garden shed it will be an attractive building but that's not the issue. The issue is whether the variance request meets the criteria listed in the variance procedures of the zoning rules and all we ask is that the board votes with that in mind so we don't end up with a precedent that could effect the rest of the town. And on a personal note I'd like to tell you a little story that happened to me not too many years back. I was working in my yard and a fellow was looking at the property right across from me which butts the golf course there and he came over and he was asking me about the area and he says, well I'm looking for a piece of property, he says I'm going to put a shed on it and I'm going to store my boat and everything and I told him, I said, well the town doesn't allow that. Needless to say he didn't buy the lot so you can see what might happen. So, that's all I have to relate. Thank you. Chairman Potter - Thank you Mr.Bobel. Chairman Potter - Mike Calderaro. I'm Mike Calderaro. I'd like to just present a scenario to the board. Should they approve the variance, I own four lots - building lots. I could put four sheds around Minnesott, and as long as I comply with the setbacks and the height requirements and leave enough room to build a minimum square footage house, I could build a great big building. I could rent space to people and that's why I'm against it. It's just where ever you go. You look all around. There's a lot of empty lots. You start letting somebody build accessory buildings before they move in and, you know, build the main structure then I think you're going to have a problem. Chairman Potter - Thank you very much. Chairman Potter - This is the end of the hearing. No more speakers are scheduled to speak. So now we will proceed with the vote of the Board of Appeals. We will vote on three conclusions. To issue a variance there must be four votes in the affirmative on each of the three conclusions. First conclusion is: a) along with the five rules, I'm going to read a conclusion along with the five rules, and vote on it. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. This must be substantiated by 1) If he complies with the provisions of the ordinance, the property owner can secure no reasonable return from, or make no reasonable use of his property. 60f8
2) The hardship results from the application ofthe ordinance. 3) The hardship is suffered by the applicant's property. 4) The hardship is not the result of the applicant's own actions. 5) The hardship is peculiar to the applicant's property. The question is: did the applicant, in his presentation or his application, prove that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance by providing, by proving the conditions that those five rules exists. We have a choice of, Yes - in favor of the application or No - opposed to the application. I need a motion. Mr. Whorton - I make a motion we vote no against the application, against granting the variance. Chairman Potter - Okay, so what you are saying is you've noted there are not practical difficulties or unnecesasry hardships in the way of carrying out the strict ordinance, the strict letter of the ordinance. Mr. Whorton - That's correct. Chairman Potter - Okay, any discussion on that? In my opinion, he can make reasonable use of the property, his grounds for the variance is simply convenience and that is not grounds for hardship. Secondly, the hardship results from his preferred use of the property, not the application of the ordinance. The ordinance can be carried out, there's nothing on the property that prevents him from carrying out the ordinance. Thirdly, the hardship is not suffered by his property only. The hardship comes from his desire, their desire, for convenience and preference and that is irrelevant as far as hardship is concerned. Four, the hardship does result from the owners' own actions. It is his desire for convenience that's caused the hardship. Fifthly, the hardship is not peculiar to the owners' property. There are other properties in the same district, they're all R-20 situations over there. There is nothing unique about that piece of property that would be a hardship. So, the motion is that we, to oppose, or that there are not practical difficulties in this hardship in a way we can't carry out the strict letter of the ordinance. Any other discussion. Okay, all in favor raise your right hand. ( It is noted that all members of the Board voted to oppose the application.) Okay. Conclusion B is - The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. Question - Did the applicant prove the variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit? Mr. Whorton - I do not believe he did and I'd like to make a motion that we deny it on that ground. Chairman Potter - Okay, its moved that the variance is not in harmony with the general purpose and intent of the ordinance and preserves its spirit. Correct? Mr. Whorton - That's correct. Chairman Potter - Any more discussion, any discussion on reason to deny it then. The use desired is not in keeping with other properties in the neighborhood. Other properties are residential or vacant. Okay, any other discussion. The motion is it is not in harmony with the general purpose and intent of the ordinance and preserves its spirit. All in favor then raise your right hand. 70f8
(It is noted that all members of the Board voted to oppose the application.) Okay, oppose the application. The third conclusion is: in granting of the variance the public safety and welfare have been assured and substantial justice has been done. Question - Did the applicant prove that in granting of the variance the public safety and welfare have been assured and substantial justice has been done? Mr. Whorton - I do not believe that he has proven that. I don't believe public safety comes into a garden tool shed but I don't think we should grant it. I make a motion that we deny it also. Chairman Potter - Okay, the motion is that in granting the ordinance the public safety had not been assured and substantial justice had not been done. Any discussion on that? Substantial justice would not be done because others in the neighborhood have adhered to the ordinance. Variance would change the essential character of the neighborhood which is a residential neighborhood. Any other comments? The motion is it has not been satisfied. All in favor raise your right hand. ( It is noted that all members of the Board voted to oppose the application.) Okay. So with all three conclusions, there is a denial of the application. So it goes without saying, the final conclusion for consideration is no and we need a motion to that effect - move the application for variance be denied. Mr. Whorton - I make a motion to deny the variance application. Chairman Potter - Okay, any discussion? All in favor raise your right hand. ( It is noted that all members of the Board voted to deny the application.) The variance has been denied. Mr. Carr, ifhe listens to this tape, may appeal from this Board of Adjustment. The appeal from this board is to the - shall be to the Pamlico County Superior Court. Any appeal to the Superior Court shall be taken within thirty days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to the appellant, whichever is latter. We need to entertain a motion to adjourn the Board of Adjustment. Mr. Whorton - I make a motion that we adjourn the Board of Adjustment. Chairman Potter - Okay, all in favor raise your right hand. adjourn.) (It is noted that all members voted to,catherine Hurm, 'Town Manager 80f8