Raleigh Board of Adjustment Minutes - 09/12/2016

Raleigh Board of Adjustment

September 12, 2016

RALEIGH BOARD OF ADJUSTMENT MINUTES

The Raleigh Board of Adjustment met in regular session on Monday, September 12, 2016, 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, Chairman (City)John Silverstein, Attorney to the Board

Karen Kemerait, Vice Chair (City)Assistant Planning Director Travis Crane

Eugene Conti, Secretary (City) (Arrived late)Planning Administrator Eric Hodge

Donald Mial (County)Assistant Deputy Clerk Ralph Puccini

Neil Riemann (City Alternate)

Judson Root (City)

These are summary minutes unless otherwise indicated:

Chairman McLamb called the meeting to order, and introduced members of the Board and staff present and congratulated Mr. Root on his recent elevation to a regular member at the recent Raleigh City Council meeting.

Chairman McLambread the rules of procedure for today’s meeting, and swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, who used a PowerPoint presentation in giving testimony.

The following applications were heard with actions taken as shown:

A-99-16 – 9/12/16

Decision: Approved as requested.

WHEREAS, Lance and Cynthia Landvater, property owners, request a variance for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Unified Development Ordinance to allow for the construction of a detached house and any accessory structures/impervious surfaces on a .35 acre site zoned Residential-4 and located at 1405 Canterbury Road.

Planning Administrator Eric Hodge (sworn) indicated there are 4 of these applications before the Board today pointing out in most of the cases it is a matter of 2 lots with a ghost lot line being recombined into 1 lot with the existing structures removed and new structures proposed, and that is what triggered the stormwater regulations under the Unified Development Ordinance (UDO). He pointed out 50 such applications have appeared before the Board to date, and stated a text change addressing this issue is currently under Planning Commission review. He stated Staff does not oppose the request.

Mr. Conti arrived at 1:10 p.m.

Applicant

Attorney Ben Kuhn, 2820 Plaza Place, Suite 400, representing the Applicants (sworn), submitted, and referred to, a packet of information in support of his testimony, the contents of which are as follows:

A-99-16

Variance Request

Seeking complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Part l0A Unified Development Ordinance to allow for the construction of a dwelling and any accessory structures/impervioussurfaces on a .35 acre property zoned Residential-4 and located at 1405 CanterburyDrive.

Background

OwnershavecontractedtoselltheLot(whichisnowvacant);
Redevelopment requires recombination due to the subject tract being comprised of Lot 131, Lot 132, and part of Lot 130;
Similar to a prior case before you (2129 Cowper which was approved)
Except that the 3 "ghost" lots comprising the property are not being subdivided into 2 lots, but rather being combined into 1 lot;

Unnecessary Hardship results from strict application of the ordinance...

Oneofthe3lotsmakingup1405CanterburyCowper(partoflot 130) is only about 25 feet in width and no marketable new structure could be built within the existing building envelope given set back requirements under the UDO. Lot 131is only 44 feet wide.
The proposed and required recombination will create one conforming lot fronting Canterbury that will meet the lot width and depth requirements in the R-4 zoning district and have a reasonable sized building envelope;
Due to unforeseen impact of TC-6-15, the recombination/subdivision triggers application of active stormwater requirements because the house previously located on the property has been demolished to make way for recombination and construction of one new home on a single conforming lot that is .35 acres in area).
The proposed recombination would be exempt under the provisions oftheTextChangeproposedinTC-2-16;
Hardship results from conditions peculiar to the property arising from the 3 ghost lots and the required recombination of same, thereby triggering the active stormwater requirements due to the unintended impactofTC-6-15;
Hardship did not result from actions taken by the property owner;

Granting of the Variance is consistent with Spirit, Purpose, and Intent of the Ordinance such that public safety is secured and substantial justice is achieved.

GiventherecentUDOchange,andthatthesubdivisionwouldhavebeenpermittedundertheoldversionoftheUDOwithoutavariancefromtheactivestormwatercontrols,thevarianceisconsistentwiththespirit,purposeandintentoftheordinance.
Indeed,theCityCouncilisconsideringatextchange(TC-2-16)that would obviate the need for this variance if and when adopted in the near future;
The impervious surface of the recombined lot to be developed in thefuturewill be consistent with the provisions of TC-2-16 such that it would be exempt from active stormwater control requirements under Section 9.2 of the UDO if TC-2-16 were currently in effect.

For the reasons above stated, we request a Motion for Approval of a variance as stated in the Application in this matter.

The information packet also contained aerial photographs of the subject property as well as a copy of the original recorded subdivision plat.

Mr. Kuhn stated the existing dwelling has been demolished and his clients propose to build a new single family residence in its place. He urged the Board grant his clients’ request.

Opposition

None.

Requests for Notification

None.

Findings of Fact

1.Applicants seek a variance from stormwater control measures of UDO §9.2.2 to construct a home on a lotrecombined from three separate parcels on which a previously existing house was demolished.

2.The Board has considered Applicants’ verified application and the evidence and testimony adduced at the hearing.

3.Applicants 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 §9.2.2, Applicants would have to provide active stormwater control measures to the .35 acre lot because TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size.

6.Applicants’lots became subject to the provisions of UDO §9.2.2 when they removed the existing dwelling, which was erected straddling an interior property line in this R-4 zoning district, and recombined the three separate parcels into one lot.

7. The removal of the “ghost” property lines, which was done at the request of the City, eliminated the nonconformity created by erecting a house over an interior property line.

8. A proposed ordinance, TC-2-16, will restore the exemption that previously existed for lots this size.

9.The recombination will create a conforming lot, and will prevent the continuation of the nonconformity by removing the interior property lines.

10.The impervious surface improvements to construct the new dwelling will comply with proposed TC-2-16.

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

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.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 prior decision may be reversed, modified, or affirmedbuildings 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.

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 McLamb moved to approve the variance as requested. His motion was seconded by Mr. Riemann and received the following vote: Ayes – 5 (McLamb, Riemann, Kemerait, Mial, Root); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.

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A-100-16 – 9/12/16

Decision:Approved as requested.

WHEREAS, 711 Brooks LLC, property owner, requests a variance for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2. of the Unified Development Ordinance to allow for the construction of a detached house and any accessory structures/impervious surfaces on a .20 acre site zoned Residential-6 and located at 2105 Reaves Drive.

Planning Administrator Eric Hodge (sworn) indicated the comments he made in Case A-99-16 also apply regarding this application, and stated Staff does not oppose the request.

Applicant

Attorney Isabel Worthy Mattox, P.O. Box 946, Raleigh, NC 27602, representing the Applicant (sworn), confirmed Mr. Hodge’s testimony and pointed out the property would have been exempt under the old Part 10 City Code; however, that changed with the adoption of TC-6-15. She asserted her client’s hardships began when the City required the lot recombination.

Opposition

None.

Requests for Notification

None.

Findings of Fact

1.Applicants seek a variance from stormwater control measures of UDO §9.2.2 to construct a home on a lotrecombined from two separate parcels on which a previously existing house was demolished.

2.The Board has considered Applicants’ verified application and the evidence and testimony adduced at the hearing.

3.Applicants 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 §9.2.2, Applicants would have to provide active stormwater control measures to the .20 acre lot because TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size.

6.Applicants’lots became subject to the provisions of UDO §9.2.2 when they removed the existing dwelling, which was erected straddling an interior property line in this R-6 zoning district, and recombined the two separate parcels into one lot.

7. The removal of the “ghost” property line, which was done at the request of the City, eliminated the nonconformity created by erecting a house over an interior property line.