Raleigh Board of Adjustment Minutes - 09/08/2014

Board of Adjustment Minutes

September 8, 2014

RALEIGH BOARD OF ADJUSTMENT MINUTES

The Raleigh Board of Adjustment met in regular session on Monday, September 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

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

Karen Kemerait (City Alternate Assistant Deputy Clerk Ralph Puccini

Brian Williams (City Alternate)

Ted Shear (City)

Absent

Timothy Figgins (City)

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:

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A-38-14 – 9/8/14

DECISION:Withdrawn.

WHEREAS, Wayne Timberlake, property owner, requests a variance from section 1.5.5D.1 of the Unified Development Ordinance to allow for the combined parking and driveway area for an attached house in Residential District to be increased from 40% of the front yard area to 57% of the front yard area for property zoned Residential-4 and located at 4409 Rock Quarry Road.

Planning Administrator Eric Hodge (sworn), in response to questions, indicated he had not heard from the applicants’ attorney and stated the attorney was contacted prior to publishing today’s agenda.

Discussion took place on whether to hold this item open with Assistant Planning Director Travis Crane (sworn) reminding the Board that its bylaws state a no-show applicant would be considered a withdrawal. Chairman Coble stated the item would be held until the end of the meeting to see if the applicants appear.

Later in the meeting, Assistant Planning Director Crane stated he contacted the Applicants’ attorney, Isabel Worthy Mattox and that she advised him her clients had decided to withdraw their application at this time.

Without objection, Chairman Coble declared the application withdrawn.

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A-60-14 – 9/8/14

DECISION:Approved variances as requested.

WHEREAS, Daniel Neil, property owner, requests a .3 foot side yard setback variance and a 4.3’ aggregate side yard setback variance to legalize the existing dwelling pursuant to Section 10-2075 of the part 10 Zoning Code resulting in a 4.7 foot side yard setback for property zoned Special Residential-30 located at 1301 Dale Street.

Planning Administrator Eric Hodge (sworn) reviewed the request stating this property previously appeared before the Board in 2011 regarding a corner side yard side yard setback variance. He stated the dwelling’s original footprint revealed the shortfall in the minimum side yard setback. He stated Staff does not oppose this request.

Applicant

Daniel Neil, 1301 Dale Street (sworn), confirmed Mr. Hodge’s testimony and stated the violation was the result of a more accurate survey performed on the property. In response to questions, Mr. Neil stated the proposed addition will extend off the rear of the existing dwelling.

Opposition

None.

Requests for Notification

None.

Findings of Fact

1.Applicant seeks a variance from Raleigh City Code Section 10-2075 to legalize the existing dwelling.

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 5 foot minimum 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 dwelling was erected with a 4.7 foot setback on one side, and an aggregate side yard setback of 10.7 feet.

5.This Property was before the Board in 2011 for a corner side yard setback, but the minimum 5 foot side yard setback was not detected as a violation at that time.

6.The addition is to the rear of the dwelling and does not impact the side yard setbacks.

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

8.The Applicant's actions did not create the hardship.

9.The character of surrounding properties would not be adversely affected by thegranting of the variance.

10.Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.

11.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.

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.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

Chairman Coble moved to approve the variances as requested. His motion was seconded by Mr. McLamb and received the following vote: Ayes – 5 (Coble, McLamb, Jeffreys, Shear, Kemerait); Noes – 0. Chairman Coble ruled the motion adopted and the variances granted.

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A-61-14 – 9/8/14

DECISION:Approved variances as requested.

WHEREAS, Shea and Edward Denning, property owners, request a 1.3 foot side yard setback variance and a 4.5 foot sum of side yard setbacks variance to legalize the existing dwelling pursuant to Section 2.2.1 of the Unified Development Ordinance resulting in a 3.7 foot side yard setback and a sum of side yard setbacks of 10.5 feet for property zoned Residential-6 and Neighborhood Conservation Overlay District and located at 909 Mordecai Drive.

Planning Administrator Eric Hodge (sworn) explained the request stating the Applicants propose to add a second floor and extend the rear of the existing dwelling. He stated Staff does not oppose this request.

Applicant

Shea Denning, 909 Mordecai Drive (sworn), confirmed Mr. Hodge’s testimony and added the proposed rear addition will be stepped back from the side of the original dwelling.

Opposition

None.

Requests for Notification

None.

Findings of Fact

1.Applicant seeks a variance from UDO§2.2.1 to legalize an existing dwelling.

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 5 foot minimum side yard setback and a 15 foot aggregate side yard setback.

6.Applicant is unable to comply with UDO §2.2.1 because the house was erected prior to the enactment of setback requirements in the Raleigh City Code, and is therefore a legal nonconformity.

7.The Applicants propose to erect an addition in the rear that will be stepped back from the side of the original structure.

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

9.The Applicant's actions did not create the hardship.

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 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.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

Chairman Coble moved to approve the variances as requested. His motion was seconded by Mr. McLamb and received the following vote: Ayes – 5 (Coble, McLamb, Jeffreys, Shear, Williams); Noes – 0. Chairman Coble ruled the motion adopted and the variances granted.

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A-62-14 – 9/8/14

DECISION:Application held over to the Board’s October 11, 2014 meeting.

WHEREAS, David and Adelaide Stallings, property owners, request a 34.6 foot front yard setback variance from section 2.2.7 of the Unified Development Ordinance resulting in a 20.3 foot front yard setback for property zoned Residential-4 and located at 435 Oakland Drive.

Planning Administrator Eric Hodge (sworn) explained the request in relation to the City’s Infill Development standards. He stated the Applicants wish to orient the proposed structure toward Cheswick Drive and talked about how other structures along Cheswick Drive have greater front yard setbacks than the subject corner lot. He stated the Code would allow a 54 front yard setback along Cheswick with a 20 foot corner side yard setback. He stated Staff is not opposed to the request due to the size of the subject lot.

Discussion took place regarding the proposed dwelling’s footprint and the rear yard setback requirements as outlined in the City’s Unified Development Ordinance (UDO) with Mr. Shear questioning the effective date of the City’s Infill Development standards and Planning Administrator Hodge responding the standards went into effect in September of 2013 when the UDO was adopted. Additional discussion took place regarding the date the subject lot was recorded and whether the City’s Zoning Part 10 or the UDO standards apply with regard to the amount of allowable footprint on the subject property.

Applicant

No one appeared on behalf of the applicant.

Following brief discussion, Chairman Coble stated this item would be held over to the end of the meeting to give the Applicants time to appear.

Later in the meeting, Ed Coley, 3301 Cheswick Drive (sworn), indicated his lot adjoins the subject property and expressed his support for the application.

Chairman Coble asked if the Applicants were present with no response given from the audience.

Following brief discussion, it was agreed to hold this application over to the Board’s October 13, 2014 meeting.

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A-63-14 – 9/8/14

DECISION:Approved variances as requested.

WHEREAS, Ubaldo Rodriguez and Arlette Fernandez, property owners, request a 10 foot rear yard setback variance, a 10 foot corner lot side yard variance and a 10 foot aggregate front/rear yard variance to construct a detached single-family dwelling pursuant to Section 10-2075 of the part 10 Zoning Code resulting in a 10 foot rear yard setback, a 10 foot corner lot side yard setback and a 30 foot aggregate front/rear yard for property zoned Residential-20 located at 727 Martin Luther King, Jr. Boulevard.

Planning Administrator Eric Hodge (sworn) indicated this application is not subject to the City’s Infill Development standards as the property is adjacent to both a school and an alleyway. He stated the existing dwelling was demolished, and pointed out the adjacent alleyway was never improved; that it is a “paper” street only. He went on to talk about the City’s parking requirements and stated Staff believed this request is not unreasonable. In response to questions, Mr. Hodge stated there are no plans to improve the alleyway.

Applicant

Umberto Rodriguez, 209 Windfield Court (sworn), confirmed the original dwelling was demolished and proposes to re-build in the same location.

Christopher Bethell, Christopher’s Design Studio, Raleigh (sworn), in response to questions, stated the proposed dwelling would have a 25’ x 35’ footprint.

Opposition

Jeff Donaldson, 918 South State Street (sworn), stated he is a life-long resident of Raleigh and spent 21 years in the military. He stated he used to own several lots in the neighborhood and currently owns the adjacent parcel. He expressed concern regarding activities on the subject property spilling over onto his property noting the City recently sent an inspector to survey the activities and also expressed concern the Applicants want to cross over onto his property.

Chairman Coble explained the request was to replace the existing dwelling with another in the same location and that there will be no changes to the property lines.

Mr. Donaldson talked about how some of the demolition activity spilled over onto his property with Mr. Silverstein reiterating the proposed building will not go outside the existing property lines.

Mr. Donaldson expressed his mistrust of the proceedings.

Rebuttal

Chairman Coble urged the Applicant address the neighbor’s concern with regard the demolition and construction debris spilling over onto the neighbor’s property.

Mr. Rodriguez stated once the house is built he will install a fence along the property line with Mr. Coble reiterating the neighbor’s issue must be addressed.

Requests for Notification

None.

Findings of Fact

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

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 20 foot rear yard setback, a 20 foot corner side yard setback and a 40 foot aggregate front and rear yard setback.

4.Applicant is unable to comply with Raleigh City Code Section 10-2075 because the lot is too small to accommodate a house that would meet all setback requirements.

5.The dwelling that previously existed on this lot has been demolished, and Applicants wish to build a new dwelling with the same footprint as the previous structure.

6.The subject property is adjacent to a school, and to an alley that will not be improved.

7.The proposed dwelling will have a footprint that is 25 feet by 35 feet.

8.The opposition to the Application emphasized the use of the property rather than characteristics of the property itself.

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

10.Applicant's hardship is related to the unique circumstances of the property, namely its small size.

11.The Applicant's actions did not create the hardship.

12.The character of surrounding properties would not be adversely affected by thegranting of the variance.

13.Denial of the variance would result in insignificant public benefit but would greatly harm Applicant.

14.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.

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.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

Chairman Coble moved to approve the variances as requested. His motion was seconded by Mr. McLamb and received the following vote: Ayes – 5 (Coble, McLamb, Jeffreys, Shear, Williams); Noes – 0. Chairman Coble ruled the motion adopted and the variances granted.

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A-64-14 – 9/8/14

DECISION:Denied.

WHEREAS, Brian Phillips and Shannon Pratt-Phillips, property owners, request a 0.6 foot side yard setback variance for a 12.7 foot wide bay feature addition pursuant to Section 2.2.1 of the Unified Development Ordinance resulting in a 4.4 foot side yard setback for property zoned Residential-20 and Neighborhood Conservation Overlay District and located at 311 Perry Street.

Chairman Coble indicated he needed to recuse himself from participation from this matter as he is an adjacent property owner. Chairman Coble left the table and Vice-Chairman McLamb assumed the Chairman’s position.

Planning Administrator Eric Hodge (sworn) explained the Applicants propose to expand the existing dwelling by adding a box bay window noting the proposed addition is greater than the maximum allowable width of 10 feet. He stated Staff does not support the request.

Applicant

Attorney Sam Weathers, 728 West Hargett Street, (sworn), representing the Applicants, stated the applicants are out of the country, so he was asked to represent them. He stated his clients would like to amend their application to add a request to legalize a side yard violation. He stated his clients are requesting the variance to give additional distance between the 2 windows in the bay addition.