TOWN OF DUCK
BOARD OF ADJUSTMENT MINUTES
FRIDAY, MARCH 19, 2004
The Board of Adjustments for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, March 19, 2004.
BOARD OF ADJUSTMENT MEMBERS PRESENT: Olin Finch, Denver Lindley, Jr., Alan H. Starr, Sam Taylor, Patty Wander, Darwin “Doc” Drewyer (alternate), Pat Wardlaw (alternate). Others present: Town Clerk & Manager, Chris Layton, Planning & Zoning Administrator, Sue Cotellessa and Board of Adjustment Clerk, Sandy Cady.
The meeting was called to order by Chairman, Sam Taylor, at 2:00 p.m.
BUSINESS MEETING (Regular Members and Alternates Participate)
A. ELECTION OF OFFICERS (Effective July 1, 2004)
Motion was made by Denver Lindley, Jr. to appoint Sam Taylor as chair to be effective July 1, 2004. There being no further nominations, the motion carried 6-0. Member Wander recused herself pending her swearing in.
Motion was made by Denver Lindley, Jr. to appoint Alan H. Starr as vice-chair to be effective July 1, 2004. There being no further nominations, the motion carried 6-0. Member Wander recused herself pending her swearing in.
Chairman Taylor appointed Planning & Zoning Administrator, Sue Cotellessa, as secretary of the Board of Adjustments. He further noted the he previously appointed Sandy Cady as Clerk.
B. APPROVAL OF MINUTES FROM MARCH 7, 2003 (Only Board members present on that date shall vote on the approval)
It was noted that the draft minutes needed several corrections made. The date of the last meeting should read March 7, 2003 rather than 2004. Pat Wardlaw was also present at the March 7, 2003 meeting however he was not indicated as being present.
It was clarified that Denver Lindley, Jr. (not Nancy Caviness) made the motion to appoint Sam Taylor as chair.
It should also be noted that John Brock had to leave the meeting before the hearing began, and Nancy Caviness was appointed as an alternate to serve in his place at the March 7, 2003 meeting.
The Rules of Procedure as detailed in the March 7, 2003 minutes were adopted 8-0 following a motion to do so.
It was also noted that the minutes from March 7, 2003 should state “...Having heard all of the evidence and arguments presented at the hearing, and permitting cross-examination, the Board of Adjustments entered deliberations and decided by a vote of 3-2 to make the following findings of fact and conclusion; members Taylor, Finch and Lindley, Jr. voted to deny the appeal and members Caviness and Starr voted to approve the appeal.
Chairman Taylor asked Planning Administrator Sue Cotellessa whether the Board needed to see the minutes again before they could approve them. She advised that the Board has the option to approve the minutes as hereby amended, or staff can make the changes and the Board can then approve them at the next meeting.
Member Lindley made a motion to approve the minutes as amended subject to review.
Motion carried 6-0.
Town Clerk, Chris Layton, administered the oath of office to Patty Wander.
APPEAL HEARING (Regular Members and Designated Alternates Participate)
A. Appeal of Thomas & Mary Clancy from the determination of the Zoning Administrator denying site plan approval and building permit for the construction of an elevator and expansion of a nonconforming structure located at 118 N. Snow Geese Drive
Chairman Taylor opened the hearing to consider the appeal of Thomas and Mary Clancy from the decision of the Zoning Administrator denying site plan approval and building permit for the construction of an elevator and expansion of a nonconforming structure located at 118 N. Snow Geese Drive. Thomas and Mary Clancy were represented by Bobby Outten, Esquire. Chairman Taylor requested that all persons who would be providing testimony to the Board be sworn, and Chairman Taylor administered the oath to all persons testifying and presenting evidence before the Board of Adjustment.
Attorney Outten began appellant’s presentation by offering into evidence the material that they received which included a copy of a building permit application, a plat and a reduced copy of a floor plan. Attorney Outten then called Mark Martin of Sandmark Construction to testify. Mr. Martin confirmed that the floor plan and survey that was included in the Board’s packet was that which was submitted to the Town. Chairman Taylor acknowledged receipt of same.
Mr. Martin explained that the Clancy’s own a 5 bedroom house on a substandard lot that only allows 4 bedrooms under the Town’s current ordinance. Mr. Martin was proposing to install an elevator and a hallway to allow access to that elevator. With the creation of the hallway, he was proposing to extend the kitchen on the top floor over an existing deck, extend the bedroom while remaining within the limits of an existing deck and extending the lower level which is presently used for storage. The extension of the bedroom/lower level and kitchen would increase lot coverage by approximately 32 square feet. Parking would not be affected, and occupancy would not change, however the septic system would need to be relocated due to the location of the elevator.
Mr. Clancy was recognized to speak. Mr. Clancy noted that he and his wife do not rent their house; they use the house strictly for vacation and to spend time with their family, and their 12 grandchildren. Mr. Clancy is now 71 years old, and his wife is 69. Both are having some difficulty with stairs, which is what is driving their need for an elevator.
Planning Director Cotellessa at the Board’s request, clarified that neither the extension of the kitchen nor the installation of the elevator were an issue in this matter.
Attorney Outten stated that the issue is the fact that you have a five bedroom house which was legal when it was built, but the Town’s ordinance now states that you can only have a four bedroom house on a lot of this size. Therefore, this property is nonconforming. The question is an interpretive issue as to whether the extension of the fifth bedroom increases the extent of that nonconformity. Mr. Outten explained that it was his client’s position that the nonconformity lies in the fact that Mr. and Mrs. Clancy have a 5 bedroom house on a lot that only allows 4 bedrooms. They are not increasing the number of bedrooms, and therefore, they are not increasing the nonconformity.
Planning Director Cotellessa was recognized to speak. She first offered into evidence the staff report which was delivered to the Board members as well as to the appellants. The staff report sets out the Town’s position. Ms. Cotellessa commented that staff did in fact consult with the Town’s attorney regarding this matter; staff visited the site and examined the Town’s regulation to try and make a determination on something that was not terribly clear. Ms. Cotellessa explained that the Clancy permit was denied based upon nonconforming regulations detailed in both section 33 and section 34 of the zoning ordinance. She further explained that section 33 talks about enlarging or altering a nonconforming structure in a way that does not make it any more nonconforming. She wanted to point out that this property has several nonconformities with respect to lot size, number of bedrooms, parking spaces and minor setback issues. The only concern here however has to do with the actual use of the bedroom and section 34 of the zoning ordinance speaks to this issue. The extension of the bedroom into an area not manifestly designed for such a use, i.e. the deck, and the extension of the corner of the bedroom 2-3 feet beyond the existing deck line is what caused the Town’s difficulty.
Member Starr suggested that depending on the definition of nonconforming use which is not defined in the ordinance, it may be that section 34 is not applicable. There was some discussion following Mr. Starr’s comments regarding nonconforming uses versus nonconforming structures and their applicability in this instance.
Chairman Taylor indicated that one of the things the Board needs to do here is determine how they are going to interpret nonconforming use.
Member Finch asked Ms. Cotellessa to put in a sentence what makes this case an increase in nonconformity.
Planning Director Cotellessa indicated that the enlargement of the structure to accommodate an expansion of the fifth bedroom constitutes an expansion of a nonconforming use. She further indicated that by ordinance she is charged with making a determination. Based upon all of the evidence, she would reluctantly hold to her interpretation that the fifth bedroom is a use and the expansion thereof should not be permitted.
Members of the Board agreed that the language was unclear as to what a nonconforming use is. If section 34 applies and the fifth bedroom is a use, then the language is very clear in that you would have to uphold the denial. If section 34 does not apply, then the question of whether increasing the size of the bedroom is increasing a nonconformity is less clear.
Having heard all of the evidence and arguments presented at the hearing, and permitting cross-examination, the Board of Adjustments entered deliberations. Member Starr made a motion stating that in view of what he thinks is ambiguity in both of the zoning sections referenced in the zoning administrator’s determination (section 33 and section 34), pursuant to provisions of the Town of Duck zoning ordinance sections 57 and 64, and based upon draft findings of fact and conclusions of law presented in an appeal hearing on March 19, 2004, he moved that the Board of Zoning Adjustment reverse the zoning administrator’s determination to deny the building permit submitted by Mark Martin, Sandmark Construction and Real Estate on behalf of Thomas J. and Mary Pat Clancy, in Case BOA2004-001. Mr. Starr further recommended that this Board draft an appropriate statement to both the Town and its planning staff to review the nonconforming use provisions of the ordinance and adopt revisions to the ordinance that clarify the intent of the Town on the issue of nonconforming use.
Motion carried 5-0.
OTHER BUSINESS
Chairman Taylor explained to the Board that there are three (3) legal things that pertain to the Board of Adjustment; the zoning ordinance, the general ordinance and the rules of procedure. In light of the ambiguity in the zoning ordinance that became evident at this meeting, Chairman Taylor suggested that it would be wise of the Board of Adjustments to have an administrative meeting to review the three items that pertain to the Board of Adjustments. Another reason behind an administrative meeting would be to construct or present a motion requesting the review of the ordinance as it pertained to this hearing, and nonconforming uses.
Member Starr suggested that it may not be necessary for the Board of Adjustment to do anything formally, as he believes that staff has a clear understanding of the concern with regard to nonconforming uses, and he was sure the Board’s concern would be passed on to the Planning Board as well as Council for review. Member Starr indicated that he was quite disturbed, as they deliberated the Clancy appeal that it was possible, in a much broader sense, to end up with a much larger nonconformity. He indicated that much of this could be prevented with a better definition of the word “use”. Mr. Starr stated that he would hope that staff would carry this forward, and he also noted that two (2) Council members were present for the hearing today as well.
Member Wander stated that the “use” question could undermine the whole idea of nonconforming bedrooms by number.
Planning Director Cotellessa stated that it would be useful to put within the nonconforming language some sort of definition of use. She would suggest a definition of use within the nonconforming section. She further noted that Council was scheduled to look at a revision of the nonconforming regulations, and although these revisions do not deal with this particular issue, she indicated that she could certainly provide Council with a summary of the Board of Adjustment’s concerns. Planning Director Cotellessa explained that Council would then need to refer the zoning text amendment back to Planning Board for review as required by law. Ms. Cotellessa explained that it is very important that this language be defined as clearly as possible so staff can administer it consistently and fairly.
Chairman Taylor again suggested another meeting within the next few months to at least review the minutes while they are still fresh in their minds, and to look at the three items that affect the Board of Adjustments as he previously mentioned; even if they only look at their Rules of Procedure.
Member Finch expressed his concern with regard to setback encroachments, as there is no clear guide as to how they should be handled. Mr. Finch further advised the Board that he has tried to find some guidance by researching other municipality procedures, and there is really no good guide to follow.
Planning Director Cotellessa indicated that she just recently pulled a document from the North Carolina Institutes of Government website which details the results of a zoning variance survey that was performed. The survey details such things as how long Boards spend on a typical variance, what the fees are, what kind of information staff provides to the Board, how often a petitioner appears as a witness, how often an attorney is present, but it also details the means to employ the first draft of findings of fact; how do you get at making a proper determination. Ms. Cotellessa indicated that she would make copies of this document for the Board. She also explained that she is looking for budget opportunities to allow for some training for the members of this Board. Ms. Cotellessa advised the Board that she also has a copy of the Board of Adjustment workshop given by the Institute of Governments. This documents details how boards can be most effective, how they do findings of fact, what the constitutional limitations are on zoning discretion, and other issues that may be helpful to the members.
The Board agreed to set their next meeting for May 7, 2004 at 2:00 p.m.
STAFF COMMENTS
None.
BOARD COMMENTS
None.
ADJOURNMENT
Member Lindley made a motion to adjourn.
Motion carried 7-0. The time was 3:20 p.m.
Approved: ______________________________________________
/s/ Secretary
NORTH CAROLINA TOWN OF DUCK
DARE COUNTY BEFORE THE BOARD OF ADJUSTMENT
ORDER REVERSING ACTION OF ZONING ADMINISTRATOR
The Board of Adjustment for the Town of Duck, having held a public hearing on March 19, 2004 to consider the appeal of Thomas and Mary Clancy from the decision of the Town of Duck Planning Department denying site plan approval and building permit for the construction of an elevator and expansion of a nonconforming structure located at 118 N. Snow Geese Drive. Thomas and Mary Clancy were represented by Bobby Outten, Esquire.
Having heard all of the evidence and arguments presented at the hearing, the Board makes the following:
Findings of Fact
Section 33. - Non-conforming structures
Where a lawful structure exists on July 3, 2002, on the effective date of any applicable amendment of this chapter, that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards, its location on the lot or other requirements concerning the structure, such structure may be continued so long as it remains lawful, subject to the following provisions:
(a) No such non-conforming structure may be enlarged or altered in a way which increases its non-conformity, but any structure or portion thereof may be altered to decrease its nonconformity.
(b) Should such non-conforming structure or non-conforming portion of structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at the time of destruction, it shall not be reconstructed, except in conformity with the provisions of this ordinance.
(c) Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.
(d) Any such non-conforming structure located on a lot adjacent to the Atlantic Ocean or sound waters may be moved on the same lot; provided, that such movement does not increase the non-conformity of the structure in any way.
Section 34. - Non-conforming uses of buildings or of buildings and premise in combination
If a lawful use involving buildings with a replacement cost of one thousand dollars or more, or involving building and premises in combination, exists on July 3, 2002, or on the effective date of any applicable amendment of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued, so long as it remains otherwise lawful, subject to the following provisions:
(a) No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered, except in changing the use of the structure to a use permitted in the district in which it is located.
(b) Any non-conforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use on July 3, 2002, or on the effective date of any applicable amendment of this ordinance, but no such use shall be extended to occupy any land outside such building.
(c) If no structural alterations are made, any non-conforming structure or use of a structure may be changed to any conforming use or with approval of the Town Council, to any use more in character with uses permitted in the district. In permitting such a change, the Town Council must find that the proposed use is more appropriate or equally as appropriate to the district as the existing non-conforming use and shall require appropriate conditions and safeguards necessary to ensure that the change is in keeping with the provisions and spirit of this ordinance.
(d) Any structure, or structure and land in combination, in or on which a non-conforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district, and the non-conforming use may not thereafter be resumed.
(e) When a non-conforming use of a structure, or structure and premises in combination, is discontinued or abandoned for ten consecutive months, except when government action impedes access to the premises, the structure, or structure and premises in combination, shall not thereafter be used, except in conformity with the regulations of the district in which it is located.
(f) Where a non-conforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the non-conforming status of the land. “Destruction”, for the purpose of this subsection, is defined as damage to an extent of more than fifty percent of the replacement cost at the time of destruction.
THEREFORE, based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, it is hereby ORDERED that the determination of the Town of Duck Zoning Administrator denying building permit approval to Mark Martin of Sandmark Construction and Real Estate for improvements to the Clancy residence at 118 N. Snow Geese Dr in Duck, North Carolina is hereby REVERSED.
Entered in open session the 19th day of March, 2004 and signed the 19th day of April, 2004.
/s/ Chair