TOWN OF DUCK

BOARD OF ADJUSTMENT MINUTES

FRIDAY, SEPTEMBER 24,  2004

 

The Board of Adjustments for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, September 24, 2004.

 

BOARD OF ADJUSTMENT MEMBERS PRESENT: Chairman Sam Taylor,  Members Olin Finch, Patty Wander, Darwin “Doc” Drewyer (alternate),  and Pat Wardlaw (alternate).  Others present: Town Manager Chris Layton, Planning Director/ Zoning Administrator Sue Cotellessa and Board of Adjustment Clerk Sandy Cady.

 

Vice-Chair Alan H. Starr and Member Denver Lindley were absent; Darwin “Doc” Drewyer and Pat Wardlaw were appointed to serve in their absence.   Chairman Taylor let it be known for the record that a full quorum was present.

 

The meeting was called to order by Chairman Taylor, at 2:03 p.m. 

 

BUSINESS MEETING (Regular Members and Alternates Participate)

 

A. APPROVAL OF MINUTES FROM MAY 7, 2004 (Only Board members acting on that date shall vote on the approval)

 

It was noted that Darwin “Doc” Drewyer participated at the meeting of May 7, 2004 and therefore would be eligible to vote for approval of the minutes; however Pat Wardlaw did not participate and as such would not be voting on the minutes. 

 

There was no discussion regarding the minutes other than a minor typographical correction that was presented to the Board members at their seats, so Chairman Taylor approved the minutes as presented.

 

B. REVIEW AND ADOPTION OF REVISED RULES OF PROCEDURE

 

Chairman Taylor briefly explained that the members previously discussed some minor/modest changes to their Rules of Procedure which Planning Director Cotellessa put into the draft before the Board.  There were no comments or further discussion regarding the changes.

 

Member Wardlaw made a motion to adopt the revised General Rules of Procedure.

 

Member Drewyer seconded the motion.

 

Motion carried 5-0.

 

3A. Variance Hearing BOV-04-001 (Regular Members and Designated Alternates Participate) [Hearing rescheduled from canceled 8/13/04 BoA meeting]

 

Chairman Taylor detailed the issue at hand, and then noted that Planning Director Cotellessa had provided him with a checklist to assist in the review process and with his summation of the facts.

 

Chairman Taylor proceeded to swear in Murmon Hudson, Lucille Worsley, Joel Spencer, Clara Spencer and Planning Director Cotellessa. 

 

Planning Director Cotellessa offered into evidence the staff report.  She noted that the property in question is a 10,670 square foot lot.  The property has a current detached garage on the site which Mr. Hudson would like to expand to the south at the same setback as the current garage which is approximately 3 feet off of the lot line.  She further noted that the side yard setback on this lot is required to be 8 feet and therefore an expansion of the garage would be an additional 5 foot encroachment into the side yard.   She pointed out that there was a photo in the staff  report which shows the existing garage, and the cement pad that has already been poured presumably for the base of the new garage.  

 

Ms. Cotellessa indicated that she checked with Dare County and found that the existing garage showed up in their tax records around 1980; therefore the existing garage precedes zoning in Duck. 

 

She explained that under the current nonconforming regulations, you can add on to a nonconforming structure only in conformance with current regulations. 

 

The Board is charged with looking at certain criteria for approval in this matter.  Staff believes that this request for variance did not rise to the level of a variance in terms of special conditions and circumstances.  Based on all of the criteria, staff recommends denial.  Ms. Cotellessa further commented that if the Board believes that all criteria necessary for a variance have been met, and chooses to approve the variance, then staff would recommend conditions as detailed in staff’s recommendations.

 

Member Wander asked for clarification on the driveway setbacks.

 

Planning Director Cotellessa explained that side setbacks for accessory structures in this instance would be 8 feet, and 5 feet for driveway aisles.

 

Chairman Taylor clarified that the garage is currently 5 feet over the setback line.

 

Mr. Hudson was recognized to speak.  He explained that his garage is now a workshop and he wants to be able to use it.  He commented regarding the letter received from adjacent property owner Robert Teller and conversations he had with another adjacent property owner.   He also commented regarding the port a potty on his property and flooding issues relative to his septic system.   Mr. Hudson went on to explain that Dare Concrete poured the concrete slab that extends from the garage before the Town of Duck became operational.  He was told by Dare Concrete that he did not need a permit; they would take pictures for him.  He was told by Dare Concrete that he would need these pictures when he applied for a permit to build the addition to his garage.

 

Chairman Taylor attempted to clarify the time line of events.  He noted that the existing garage was built in 1980 before Mr. Hudson bought the property and before there were any zoning regulations. 

 

Member Finch clarified that there was zoning at that time, however this was an accessory building and at that time you were probably permitted to build right up to the property line.

 

Planning Director Cotellessa indicated that she did some research and zoning for the unincorporated area of Duck was adopted on July 6, 1982. 

 

Chairman Taylor went back to the timeline of events. 

 

Mr. Hudson advised the Board that the additional concrete pad was poured on August 19, 2003. 

 

Chairman Taylor inquired as to whether the Town of Duck requires permits to pour concrete.

 

Planning Director Cotellessa explained that the Town required building permits for accessory structures and land disturbance permits for patios, drive aisles, etc. as of July 3, 2003. 

 

Member Finch commented that the pouring of the slab should have been permitted but it wasn’t. 

 

Member Wander clarified that the existing concrete pad is currently in violation of the current zoning regulations, and Planning Director Cotellessa confirmed same.

 

Chairman Taylor clarified that Mr. Hudson’s intent was to add on to his existing garage so that he can store his vehicle.  He presently uses the existing garage as a workshop. 

 

Member Finch commented that there are a several criteria that must be met and he was unsure that Mr. Hudson had addressed those criteria. 

 

Chairman Taylor indicated that when he read the report, he saw hardship as the primary issue. 

 

Member Finch explained that this is an unusual circumstance where a setback encroachment occurred, and now the applicant is requesting permission for new construction on an already non-permitted, nonconforming concrete slab.  Member Finch questioned if the Board approves this, then where do they draw the line; or why is the Board even necessary.   Member Finch asked Mr. Hudson for a good reason why his variance should be granted.

 

Mr. Hudson indicated he was at the mercy of the Board.   He indicated that he wants the garage to store his automobiles and his deck chairs.   His hardship has occurred because he does not have enough storage space. 

 

Member Finch again questioned how the Board would decide the next case that comes in for a variance because “they need more storage”.  

 

Chairman Taylor questioned whether there were other alternatives available to Mr. Hudson.   Member Finch and Mr. Hudson both briefly discussed other options that could be feasible with respect to providing additional storage on the property.

 

Member Wander asked for clarification that if a permit had been requested on August 19, 2003 to pour the new concrete pad, it would have been denied.

 

Planning Director Cotellessa confirmed that to be correct.  Ms. Cotellessa went on to explain that there are two (2) issues; first there is the request by the applicant to build/add on to an already nonconforming accessory structure and secondly there is the new concrete pad which itself is in violation of the setbacks.  The remedy for the concrete pad would be to approve the variance or have the applicant remove the portion that is in violation, approximately two feet.    In both cases if the Board feels there is a rational for either one, staff recommends that Mr. Hudson obtain a permit and that he install a driveway access to it, if it is to be used as a garage.

 

Planning Director Cotellessa also pointed out that an additional letter from a property owner in Sound Sea was at the members’ places today, and should be read into the record by the date and signatory.

 

Chairman Taylor noted that the letter of September 16, 2004 from Carol Blaha was to be included in the record. 

 

With no further discussion, Chairman Taylor called for rebuttals and none were offered.  In summation, Chairman Taylor noted that Mr. Hudson applied for a variance from the setback requirements in order to construct a garage that would not comply with the setback requirements that exist today, and that would attach to the garage that presently exists and which is already nonconforming, but which was constructed before such zoning requirements existed.   The Board must decide whether granting such a variance would be within the powers of the Board based upon the rules and criteria that must be met.  Additionally, the Board must determine whether Mr. Hudson’s claim for hardship can be justified. 

 

Chairman Taylor closed the hearing and moved the Board to begin deliberations. 

 

Member Wardlaw commented that Mr. Hudson can correct this problem in several different ways and he did not see the need to grant a variance.

 

Planning Director Cotellessa reminded the Board that they need to make the findings; whether it does or does not meet those criteria.

 

Chairman Taylor asked the Board if anyone saw how granting this variance was justified because of hardship?

 

Member Finch indicated that if the Board grants this variance to build the garage addition, then they will have to grant them in the future.

 

Chairman Taylor indicated that the criteria for approval have not been met with regard to the construction of the garage.

 

Planning Director Cotellessa explained that the Board can, even though it is not a part of the variance application, make a determination as to how the nonconforming, non-permitted concrete pad is to be dealt with.  If the Board does not address that issue, then it becomes an enforcement issues, and may be subject to another variance request by the applicant.   She further explained that since the concrete pad constitutes a lesser degree of variance, the Board can make a determination today and still meet the advertisement requirements.

 

Chairman Taylor noted that the Board had dealt with the first issue of the garage and the consensus was not to allow the construction of same.  He then asked for comments on how to deal with the concrete pad.

 

Chairman Taylor commented that he was reluctant to grant variances for violations that should not and/or would not have been permitted, despite the circumstances in this instance. 

 

Member Finch explained that he is more willing to allow the concrete pad to remain due to the existing location of the garage.   He further commented that he did not think it was necessary to require an improved driveway if the applicant is happy driving over his grass.  Additionally, the Town is not requiring other property owners that do not have a paved or improved driveway to now pave and/or improve their driveways.

 

Planning Director Cotellessa explained that the Town’s current regulations require that you have a driveway that is at least 12 feet wide; it must be improved.    The applicant has requested a variance to gain access to the garage, and that thereby opens the door for the Board to look at this not only in terms of Mr. Hudson’s individual case but also as to whether what he is doing is in general harmony with the zoning ordinance. 

 

Planning Director Cotellessa explained that the Board may establish appropriate conditions on a variance that ensure that they are in the general keeping of the purpose and intent of the ordinance.  The Board’s job today is to look at the ordinance as it exists now and maintain the integrity of that ordinance. 

 

Member Wander suggested requiring tapering of the concrete pad so as to allow reasonable access to the garage bay, but she chose not to speak to the driveway issue.

 

Chairman Taylor suggested that the concrete pad should be cut so as to bring it as close as possible into conformity while still allowing access to the garage.

 

Chairman Taylor inquired as to whether there was any rational reason for granting the variance for the concrete pad. 

 

Member Finch suggested that you could make a case that there are special conditions and circumstances that are peculiar to the land; i.e. the existing garage which was constructed before zoning.   He stated that you could also make a case that the literal interpretation of the provisions of the chapter would deprive the applicant of rights of commonly enjoyed by other properties in the same district.  Normally if you have a garage, you are allowed to put concrete in front of it.   Mr. Finch further questioned whether the special conditions result from the actions of the applicant.  Mr. Finch’s suggested that the resulting conditions where not the result of Mr. Hudson’s direct action. 

 

Chairman Taylor argued that since the garage already existed, allowing Mr. Hudson to extend a driveway from that garage would not be providing him with any special privilege that anyone else would not be entitled to.

 

Planning Director Cotellessa clarified that this Board must first find that (a)1 through 4 exists, and then look at (d), (e) and (f); (d) says you must find that all of (a) has been met; (e) says that if you find all of (a) has been met, then you must further make a finding that the reasons in the application justify the variance, and that the variance is the minimum variance that will make possible the reasonable use of the structure.  She further explained that the Board can always grant less than the applicant has applied for, but they cannot grant more due to advertising requirements.

 

Member Wander commented that Mr. Finch’s argument is persuasive to the extent that if you have a garage, it is reasonable to expect that you should be allowed access to that garage.   She indicated that she had not been looking at the concrete pad as a driveway.  She further stated that she believed that if Mr. Hudson had come for a variance to install a driveway to his garage, that the Board would have granted a variance into the side setbacks for that driveway.    Ms. Wander stated that she did believe the Board needs to uphold the intent of the zoning ordinance; and she was not convinced that someone told Mr. Hudson it was ok to put this concrete pad in.  

 

Planning Director Cotellessa offered some language that the Board could consider when applying this variance.

 

 

Member Finch made a motion to allow Mr. Hudson to encroach into the Town of Duck’s 5 foot minimum setback for the driveway, approximately 1 ½ feet for a distance of no more than 22 feet south of the existing garage as depicted on the survey drawn by Cummins Surveying with a field date of April 21, 2004.   Member Finch included with his motion a requirement that Mr. Hudson obtain a land disturbance permit for the existing concrete pad.

 

Member Wardlaw seconded the motion.

 

Motion carried 5-0.

 

3B. Variance Hearing BOV-04-002 (Regular Members and Designated Alternates Participate) [Hearing rescheduled from canceled 8/13/04 BoA meeting]

 

This public hearing was deferred at the request of the applicant and was not heard.

 

3C. Variance Hearing BOV-04-003 (Regular Members and Designated Alternates Participate) [Hearing rescheduled from canceled 8/13/04 BoA meeting]

 

Chairman Taylor detailed the issue at hand, and then asked Planning Director Cotellessa for her report.

 

Planning Director Cotellessa explained that this applicant’s property is located at 120 Ocean Bay Blvd.  She noted that the letter from Carol Blaha dated September 16, 2004 applies to this case as well and should be read into the record along with the staff report.  Ms. Cotellessa went on to explain that this property is approximately 13,000 square feet.  The property owner prior to the Spencer’s applied for a permit for the installation of a pool.  Dare County processed a permit for the addition of a rear deck and a swimming pool.  The permit was issued in May, 2003 to the previous owners.  The permit file was incorporated in the staff report.   The question here is whether the Spencer’s, who purchased the property and took over the permit, met the requirements of the application as it was permitted.  Ms. Cotellessa explained that there is no issue with regard to the deck on the rear of the house; the issue has to do with the pool deck.  Dare County’s records are very unclear, and there are some discrepancies between what was permitted by Dare County and what actually came to be.   The Spencer’s were grandfathered under Dare County’s regulations and the Town of Duck was simply requiring that the permit meet what was applied for through the County.  The problem arises because there are discrepancies in the size of the pool, the location of the pool, and the applicants may very well contend that Dare County told them they could modify their permit, however the Town has no record of same.     Ms. Cotellessa conceded that there was definitely some confusion between the red line and black line drawings in the permit file. 

 

Ms. Cotellessa indicated to the Board that administratively due to the discrepancy in the drawings, she could see where the applicant would be permitted to go 2 ½ feet into the setback, and was willing to grant that amount.  She indicated that she was also willing to grant an additional 10% (2 ½ feet) of the setback distance through an error in building location, which administratively she can do.  Therefore, she indicated she was willing and able to confidently allow a 5 foot encroachment of the front setback, however the encroachment that occurred is closer to 8 feet.  She stated she did not feel comfortable approving that amount.

 

She further noted that the deck and pool both met building code requirements, and therefore a temporary certificate of occupancy was issued. 

 

Ms. Cotellessa explained that the applicants are asking for a variance to leave the concrete as it presently exists 8 feet into the front setback.  She indicated that staff recommends denial, and believes that there is relief available to the applicants allowing as much as a 5 foot encroachment.    Planning Director Cotellessa noted that there have been several pools installed this year where concrete has been cut in order to meet setbacks.  The applicants here believe that the timing and clarity of submission and completion between Dare County and Duck warrants a variance. 

 

Member Finch asked for clarification that the current condition of the property would have been approved by Dare County.

 

Planning Director Cotellessa confirmed that to be correct.   She also indicated that it was her understanding that the applicants did have conversations with Dare County prior to Duck taking over the administration of the ordinance, and after Duck took over.

 

Clara Spencer was recognized to speak.  She conformed that what Planning Director Cotellessa presented was correct.  She clarified however that she did in fact pull the permit for the pool and deck, however the tax records had not yet changed and that is why the name Stevens was on the permit.    Ms. Spencer presented to the Board a copy of the site plan that they had which did not reflect a red line at all.    She explained that there was much discussion with Dare County with regard to the installation of the pool.  

 

Chairman Taylor inquired, given the size of the lot, why the pool we built so close to the setback to begin with.

 

Ms. Spencer explained that the septic system is located to the north side of the pool.  She stated that the one point that everyone agreed to was that the pool needed to be right on the line, however Dare County at the time allowed up to 10 feet into the setback of 25 feet for a concrete pad. 

 

Planning Director Cotellessa indicated she could not confirm how Dare County handled these issues.   She did believe however that Dare County probably did allow you to go into the setbacks, but the question today is to what degree. 

 

Chairman Taylor indicated that he walked by the property in question today and indicated the pool sits back behind a bunch of brush resulting in a non-aesthetic event where the encroachment has occurred.   Mr. Taylor asked the applicants who they dealt with in Dare County. 

 

Ms. Spencer indicated that she had conversations with TJ Jones, and it was not until January, 2004 when she attempted to extend the permit because it had expired that she was informed all of the files had been transferred to Duck. 

 

Planning Director Cotellessa explained that as she recalled, the deck has been completed so the permit did not die because substantial work had commenced within the initial 6 months and therefore the permit was in fact still active.  If it had been a new permit, they would not have been allowed to put anything in the setback.    For all permits that were issued by Dare County, Ms. Cotellessa explained that the Town of Duck was only enforcing that which was approved and permitted by Dare.  If for instance a new house was constructed and approved with a driveway on the lot line, Duck would approve the final provided it met the site plan that was originally approved. 

 

Member Finch noted that the problem in this instance is that there is no defined distance into the setback on the approved permit.

 

Ms. Spencer when asked, noted that the deck was completed in May, 2003 and the pool was delivered but not installed due to the start of the rental season that year.  The pool was then completed the following off-season. 

 

Planning Director Cotellessa explained and clarified that there was never any final inspection of the pool and/or the deck until August 26, 2004.   

 

After further discussion regarding Dare County’s procedures, Planning Director Cotellessa reiterated that the big issue here is not that the pool deck encroaches the setback, but rather how far it encroaches the setback. 

 

Member Finch disagreed indicating the he felt the issue was to either allow the encroachment or not.   If you apply the old rules, then it would seem that you should allow the encroachment.

 

Planning Director Cotellessa clarified that it is not the old rules that the Town of Duck follows, but rather the “permitted activity”, which is the site plan that was approved at the time the building permit was issued.   She further explained that the Town’s attorney, Ike McRee, has also looked at this issue and he agrees that you are grandfathered for what was permitted by Dare County prior to the rule change, however you are not grandfathered for any action which was permitted from which you alter, even if the alterations made would have been permissible.   

 

Member Finch questioned the amount of feet/inches that the Board is looking at after Ms. Cotellessa grants the 5 – 5 ½ feet allowance.   Ms. Cotellessa indicated that in taking an average you would be looking at approximately a 1 foot encroachment above and beyond the 5 – 5 ½ foot allowance that she would be able to approve.

 

Chairman Taylor clarified that Ms. Cotellessa believed that if this has been handled by Dare County, as it exists now, they would have approved it.   

 

Ms. Cotellessa explained to the Board that they can find that the circumstances surrounding this application are of a unique nature that are not so recurring in nature that it is reasonable to grant this variance.  The Board has that power but she did not.

 

It was clarified that the area of concrete that would need to be cut was approximately ½ an inch to roughly 3 feet in a triangular area, above and beyond the 5 – 5 ½ feet that Ms. Cotellessa would be administratively able to approve.

 

Chairman Taylor indicated that this is a unique situation that occurred during a transitory period and that the Board would not be setting any extreme precedent.  This is a special situation.

 

Ms. Cotellessa also pointed out that there is a way to distinguish this situation from other permits in the fact that the record reflecting the approved permit differs from that which the applicant produced, and it is therefore not conclusive as to what the applicants were grandfathered for.  There are several unclear and inconclusive discrepancies that exist.

 

Chairman Taylor noted that special conditions and circumstances exist with regard to the land in the sense that there is a large burm in front of the pool making the encroachment aesthetically unobtrusive, and the burm is unique in the sense that it is not shared by many other properties.    Mr. Taylor noted that the timing of the submission and the clarity or lack of clarity of such submission speak to and meet the criteria for 2 and 3.  

 

Member Finch clarified that the Board has several options.  They can grant a variance listing the 4 reasons why a variance should be granted; another alternative would be to deny the variance; and a third alternative would be to determine that a variance was not necessary because the Board interpreted that the applicants met the requirements of the original building permit. 

 

Planning Director Cotellessa explained that by granting a variance, you are essentially making an illegal structure legal.   She further advised the Board that they can either grant or deny the variance; they cannot however go back and change or decide whether the applicants needed a variance in the first place. 

 

There was some discussion regarding criteria 2; the literal interpretation of the regulations. 

 

Chairman Taylor argued that the literal interpretation would in fact deprive the applicants of rights commonly enjoyed by other properties at the same time and under the same circumstances. 

 

Planning Director Cotellessa commented that the last part of Chairman Taylor’s argument is the important aspect, in the same circumstances, because it was not just one thing that resulted in this circumstance, but rather it was a combination of 1, 2, 3 and 4. 

 

Member Wardlaw made a motion, given the Board’s discussion, that the applicant met the criteria required in Sections 66(a) numbers 1through 4, and they are thereby afforded the minimum relief required. 

 

Member Wander seconded the motion.

 

Motion carried 5-0.

 

OTHER BUSINESS

 

None.

 

STAFF COMMENTS

 

None.

 

BOARD COMMENTS

 

None.

 

ADJOURNMENT

 

Chairman Taylor adjourned the meeting.

 

The time was 4:35 p.m.

 

Approved: ______________________________________________

                        /s/ Secretary