Board of Adjustment Minutes

July 14, 2014


The Raleigh Board of Adjustment met in regular session on Monday, July 14, 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:


Charles Coble, Chairman, (City) John Silverstein, Attorney to the Board

J. Carr McLamb, Jr., Vice-Chairman (City) Assistant Planning Director Travis Crane

Tommy Jeffreys, Secretary (County) Planning Administrator Eric Hodge

Timothy Figgins (City) Assistant Deputy Clerk Ralph Puccini

Karen Kemerait (City Alternate)

Ted Shear (City)

Brian Williams (City Alternate)

These are summary minutes unless otherwise indicated:

Chairman Coble 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:


A-39-14 – 7/14/14


WHEREAS, Randy and Shaula Sharp, property owners, request a variance from Section 9.5.2.B.1 pursuant to Section 2.2.1 of the Unified Development Ordinance to increase the impervious surface coverage from a maximum of 12% of the site to 14.46% for property zoned Residential-1-Falls Watershed Protection Overlay District located at 8500 Towneley Place.

Planning Administrator Eric Hodge (sworn), summarized the request describing the subject property and the Applicants’ request to build a single family residence on the site with an amount of impermeable surface over the maximum allowable amount for property located within a watershed overlay district.

Chairman Coble questioned the City’s interpretation of the use of gravel for a driveway with Mr. Hodge responding the City interprets gravel as an impervious surface. He acknowledged the State of North Carolina currently interprets gravel as a pervious surface. In response to questions, Mr. Hodge stated staff believes there is no demonstrated evidence of hardship.

City of Raleigh Stormwater Senior Project Engineer Ben Brown (sworn), talked about the City’s interpretation of gravel as an impervious surface in both Part 10 of the City Code as well as the Unified Development Ordinance (UDO). He stated the State gave the City the option of changing its interpretation to coincide with the State’s; however, after consulting with the City Attorney’s office, staff decided to leave the interpretation as is. In response to questions, Mr. Brown stated he previously held a position at the North Carolina Department of Transporations’s Hydrolics unit.


Randy Sharp, 109 Asling Court, Cary, (sworn) read the following prepared statement:

Our lot is a corner lot located on the north side of Strickland road, intersecting at Towneley place. Strickland road as you know at one time that was the city/county line, south of Strickland was in the city and north of Strickland was in the county. When construction of 540 took place the city expanded its limits to 540, therefore the area between Strickland and 540 became a grey area. Some homes and subdivisions annexed into the city while others remained in the county. Towneley place remained in the county.

My wife and I were looking for a lot to build our retirement home on. We heard about this lot through some friends, the Mackos. The Mackos used to own this lot and heard that the current owners were interested in selling. When the Mackos owned it, it was 2.5 acres. They decided to split one acre off and sell it. The city deemed that the Mackos were creating a subdivision, so in February 2006, the city approved the creation of the Macko Subdivision and in the Administrative Action Case File, there are two main points I want to bring your attention to.. .one, the Mackos were required to pay a $25,000 sewer assessment fee and two, city water was available to the lot.

After city approval, the lot was sold to Debbie Ham, she applied for and received a well, septic and building permit, however, was forced to sell the lot due to a family issue. They sold the lot to the Tanas' who were planning on building but subsequently changed their minds. My wife and I purchased the lot December 2013 with the understanding that water was available to the lot and that the sewer fee had already been paid. We were aware that there was a maximum impervious surface of 4841 sf. We hired an architect and when the preliminary floor plan was established, we proceeded to apply for the well and septic permits. I applied in person at the county offices. The clerk told me that since a well and septic permit had already been issued, I would simply have to pay a modification fee. When the clerk mentioned the gravel driveway, I told her that I was unable to use concrete because we were building a ranch style home and using a concrete driveway would put us over the max impervious surface. She said that gravel was ok, along with rain barrels, cisterns and plant beds. In about three weeks I was issued the well and septic permits.

We gave our architect the ok to proceed with the plans. Upon receiving the final plans I called the county office for details on filing for the building permit and was told that it had to be filed with the city, I mentioned that we lived in the county and she told me that we lived in the gray area and that although the county issues the well’ and septic permits, the city issues the building permits and that it could be filed in person at the Litchford Road location. I downloaded the forms and delivered them to the Litchford Road office.

I was told to wait 8 days and then log on to the city’s website to view the results, upon doing so there were a few conditions, one of which stated that I exceeded the max impervious surface. I called and explained that the county said gravel was ok and was told that gravel is not ok in the city. After weeks of research, we discovered through the Raleigh Homebuilders Association that the state defines gravel as a pervious surface, so I called the Litchford Road office and mentioned that and was told that Ben Brown had the final say in this matter. I reached out to Mr. Brown and he stated that the states definition of gravel as a pervious surface was a matter in interpretation with the city so the city defines gravel as impervious. He asked me if the lot had city water and city sewer, if so, this issue would be mute, I told him that water was available and the sewer assessment fee had been paid. He said that he would have to research that and get back to me. When he got back to me he stated that even though the Administrative Action Case File states that water is available, it is not, and even though the sewer assessment fee was paid, sewer was not available either. I asked him what else I could do, and he suggested that I file the variance.

So here we are. Since the city’s position is that gravel is impervious, I am asking for an additional 2.46% of impervious surface which equates to 1190 sf which to me is an insignificant part of a 40,000 sf lot.

In preparation of this, I have reviewed the boards decisions over the last few months and a lot of variances were approved that made good common sense and I am asking you to do the same as you consider these points:

  • This is the last lot in the Towneley subdivision.
  • There are 6 homes in the subdivision, the last home built in 1994; 20 years ago.
  • Three of the six homes have gravel driveways.
  • Average sf of 6 homes is 3534 ours is 3430 sf.
  • The lot is on the southernmost edge of the watershed area.
  • We are complying with the 40% forestation requirement.
  • We were told by the city that water was available and the sewer fee had been paid yet we cannot benefit from these services in the form of increased impervious surface.
  • And finally, there should be no fear of setting a precedent as the above circumstances distinguish my request totally different from other homeowners in this subdivision.

I am asking you to think outside the box and please approve our request.

Thank you for your time and consideration

Chairman Coble questioned the proposed design of the dwelling with Mr. Sharp responding the home would be a ranch-style home of about 4,500 square feet and adding if the gravel drive were approved the property would be under the impervious surface maximum.

Discussion took place regarding the size of the proposed building pad, driveway, as well as the sidewalk with Mr. McLamb questioning whether the City considers all types of gravel impervious surfaces and Planning Administrator Hodge responding by quoting the section of the UDO pertaining to the City’s interpretation of the use of gravel as impervious surface.

Chairman Coble questioned what options the Applicants have regarding pervious surfaces for the driveway with Senior Project Engineer Brown responding the applicants could use pervious asphalt or paver blocks, etc. Chairman Coble questioned whether there were any surfaces that were 100 percent pervious with Mr. Brown responding from the Stormwater Staff’s standpoint there are no such surfaces out there.

Chairman Coble questioned whether the Applicants considered alternative materials for the driveway with Mr. Sharp responding pervious asphalt is very expensive and pointed out the State defined cleaned and washed gravel as a pervious surface. He noted pervious pavers could become clogged and the City could inspect the driveway conditions and force any repairs.

Senior Project Engineer Brown acknowledged pervious pavers are maintenance intensive. He stated the pavers could be installed with the condition the homeowner perform an annual analysis of the pervious conditions and submit the results to the City for analysis.

Discussion took place regarding various pervious paver materials available.

Ms. Kemerait requested clarification regarding the Applicants’ claim of hardship with Mr. Sharp responding he and his wife assumed water was available to the property and that the sewer assessment was paid, and that all plans were based on those assumptions. He added it would be more economical to pay $500 for a gravel driveway than pay more than $3,000 for a pervious paver driveway.

Mr. McLamb noted the issue is the use of gravel for the driveway and questioned whether there was any type gravel, such as riverbed pebbles, that would be considered pervious with Senior Project Engineer Brown responding any amount of driving on the gravel would compact the surface over time; therefore, staff interprets that as impervious.

Mr. Jeffreys requested clarification regarding the differences between State’s interpretation and the City’s interpretation with Mr. McLamb noting there is pending legislation that would direct a study with North Carolina State University with regard to gravel surfaces.

Mr. Shear questioned whether the variance would violate the City’s stormwater permit with the State with Senior Project Engineer Brown responding in the affirmative.



Requests for Nofification


Findings of Fact

1.Applicant seeks a variance from UDO§ 9.5.2B.1 to increase the impervious surface coverage on a lot.

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§ 9.5.2.B.1, Applicant would have to provide a maximum of 12% of the site coverage with impervious surfaces.

6.Applicant is unable to comply with UDO § 9.5.2.B.1because Applicant desires to use a gravel driveway, which would increase the impervious surface ratio to 14.46%.

7.The State of North Carolina has interpreted gravel to be a pervious surface, but the City of Raleigh had the option of changing its interpretation to coincide with that interpretation, but chose not to do so.

8.Applicant could use other surfaces such as pervious asphalt or paver blocks, which would not count as much against the impervious surface requirements; however, such materials are expensive and more difficult to maintain.

9.Applicants propose a ranch-style home of approximately 4,500 square feet, but a multilevel home of the same square footage would utilize less impervious surface.

10.Granting the variance to Applicants would violate the City of Raleigh’s storm water permit with the State of North Carolina.

11.Strict compliance with the provisions of the ordinance would not deprive Applicant from the reasonable use of the property.

12.Applicant's hardship is not related to the unique circumstances of the property.

13.The Applicant's actions created the hardship or the practical difficulties.

14.The variance requested is a significant deviation from the ordinance and is inconsistent with the general purpose and intent of the ordinance.

15.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.

Conclusion of Law

Applicant has failed to meet the requirements of UDO § 9.5.2.B.1, in that a dwelling can be erected on Applicant’s lot that would meet the impervious surface limitations, and the variance request should be denied.


Chairman Coble moved to deny the variance request. His motion was seconded by Mr. Shear and received the following vote: Ayes – 4 (Coble, Shear, McLamb, Figgins); Noes – 1 (Jeffreys). Chairman Coble ruled the motion adopted on a 4-1 vote; therefore, the variance request is denied.


A-40-14 – 7/14/14

DECISION:Approved the variances as requested.

WHEREAS, Ashkan, Cynthia and Sayed Hosseini, property owners, request a 1.5 foot side yard variance and a 7.6 foot aggregate side yard setback variance from to legalize and expand an existing dwelling pursuant to Section 10-2075 of the part 10 Zoning Code resulting in a 3.5 foot side yard setback and a 8.6 foot aggregate side yard setback for property zoned Residential-20 and Neighborhood Conservation Overlay District (Southpark) and located at 514 Worth Street.

Planning Administrator Eric Hodge (sworn) explained the request referring to staff’s report included in the agenda packet. He stated the existing structure is already nonconforming and that the addition would violate the aggregate setback.

Discussion took place regarding the setbacks for the both the existing structure as well as the proposed addition to the rear of the structure with Planning Administrator Hodge indicating Staff is not opposed to the request and noting other dwellings in the neighborhood have similar setback issues.


Ashkan Hosseini, 1299 Cumberland Road, Atlanta, Georgia (sworn) confirmed Mr. Hodge’s testimony regarding the setback issues and stated the proposed addition would be about 3.5 feet closer to the right (west) side setback, but will still make the minimum 5 foot setback. He noted the house will require extensive repairs, and went on to talk about how the City’s Unified Development Ordinance (UDO) will eventually rezone the property to eliminate the 15 foot aggregate requirement. He stated until the rezoning takes place, the subject property remains in a zoning “limbo”.



Requests for Notification


Findings of Fact

1.Applicant seeks a variance from Raleigh City Code Section 10-2075.

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 Section 10-2075, Applicant would have to provide a minimum 5 foot side yard setback and a 15 foot aggregate side yard setback.

4.Applicant is unable to comply with Raleigh City Code Section 10-2075 because the structure currently is 3.5 feet from the side property line, and the aggregate setback is 8.6 feet.

5.This house was erected prior to the enactment of setback requirements in the Raleigh City Code, and is therefore a legal nonconformity.

6.Applicant plans an addition to the rear that would not require any additional variances.

7.The rezoning of the subject property contemplated by the UDO will eliminate the requirement for an aggregate side yard setback.

8.Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property.