TOWN OF DUCK
BOARD OF ADJUSTMENT MINUTES
FRIDAY, APRIL 1, 2005
The Board of Adjustments for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, April 1, 2005.
BOARD OF ADJUSTMENT MEMBERS PRESENT: Chairman Sam Taylor, Vice-Chair Alan H. Starr, Members Olin Finch, Patty Wander, Denver Lindley and Darwin “Doc” Drewyer (alternate). Others present: Planning Director/ Zoning Administrator Sue Cotellessa and Board of Adjustment Clerk Sandy Cady.
Member Pat Wardlaw was absent. 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 2:00 p.m.
2. BUSINESS MEETING (Regular Members and Alternates Participate)
Chairman Taylor announced to the Board Members that Member Wardlaw was moving back to Pittsburgh. Mr. Taylor indicated that he would be missed and thanked him for all of his efforts and service to the Town of Duck.
A. APPROVAL OF MINUTES FROM SEPTEMBER 24, 2004 (Only Board members acting on that date shall vote on the approval)
Chairman Taylor approved the minutes of September 24, 2004 as presented with one minor typographical correction on page 8.
3. Variance Hearing BOV-2005-001 (Regular Members and Designated Alternates Participate)
Chairman Taylor swore in Jim Andrews representing the applicants, Joel and Debi Maness, and Planning Director Cotellessa.
Planning Director Cotellessa offered into evidence the staff report. She noted that the property in question is residential lot that has a very narrow entrance. She indicated the issue is a matter of numbers; the property is only 20.3 feet wide but in order to meet the driveway and setback requirements you need 22 feet. As the zoning administrator, Ms. Cotellessa explained that she does not have authority to grant approval in this case, and therefore the applicant has come forward to request a variance condition as it is presently laid out and depicted in the As-Built survey that the Board has in their package. Ms. Cotellessa indicated that staff fully supports this request; it meets all of the criteria necessary for the Board to approve a variance. She further noted that the applicant has met all other dimensional requirements from the point that is possible.
In concluding her presentation, Ms. Cotellessa indicated to the Board that this is a perfect example where a zoning text amendment would be appropriate and she further stated that she would discuss that further under staff comments.
Chairman Taylor was curious how a lot such as this would have been platted.
Planning Director Cotellessa explained that in Duck, particularly where there are ocean and sound front properties, there are some odd shaped lot configurations. She suggested that these lots were probably platted prior to these setback requirements.
Vice-Chair Starr questioned whether this was an unusual configuration within Schooner Ridge or whether this was prominent elsewhere in Duck as well.
Planning Director Cotellessa stated that based upon aerial photographs of the Town, she would estimate that there may be about a dozen lots with similar issues so it is not unique to Schooner Ridge alone.
As far as future development, Ms. Cotellessa explained that most of the Town has been subdivided so this will not likely be a future problem.
Mr. Andrews was recognized to speak and acknowledged that he and the owners became aware of the problem when they prepared to pour the concrete. He indicated that they felt the lesser of two evils was to encroach on only one setback line rather than two which is why the laid the driveway as depicted in the As-Built survey.
Member Finch indicated that this was not the unusual for the county as a whole, noting that the Town wrote a set of more restrictive regulations than what was originally platted, and in turn created a number of nonconformities.
Planning Director Cotellessa explained that under Dare County, you could put a driveway anyway on the lot; driveways were often poured right to the lot line. With the current setbacks, she explained that this type of issue may be more likely which is why staff is taking a zoning text amendment to Council at their April meeting.
Chairman Taylor asked for a motion.
Member Lindley made a motion to grant the applicant’s request based upon the findings of fact in the draft Order Granting a Variance.
Member Finch seconded the motion.
Motion carried 5-0.
OTHER BUSINESS
Planning Director Cotellessa advised the Board that she expected to received a couple of items that would need to come before the Board in the next month or two. She further noted that re-appointments will probably occur next month and the Board will probably have a June meeting.
STAFF COMMENTS
Planning Director Cotellessa explained that the Board had before them a draft Zoning Text Amendment that was going for a public hearing on April 6, 2005 before Town Council. She provided a brief overview of the amendment explaining that the intent is to help deal with improvements to illegal structures resulting from Dare County, as well as to allow for administrative approval when situations develop such as the matter heard before the Board today.
Ms. Cotellessa further explained that this is a two tier process. On one level applicants would have the option to apply for a special exception which does not rise to the level of hardship as a variance. She offered a few examples of situations where a special exception under this zoning text amendment would be applicable. The second level allows for administrative approval when no change to the footprint of the house will occur or in situations as occurred in the case heard today. In either circumstance, the approval of the home owners associations is required and adjacent property owners must be notified. This text amendment allows for a common sense approach to difficult situations, and Ms. Cotellessa offered the details from a variance application that was withdrawn in September, 2004 involving a height situation. This project involved an addition that was constructed to the level of the existing roof line, which exceeded the height limitations under Dare County but which obtained a Certificate of Occupancy. The addition does not meet current regulations; this amendment would allow the home owners to apply for a special exception before this Board.
Vice-Chair Starr questioned whether the applicant would have the right to come before the Board if their home owners association does not approve the applicant’s request.
Planning Director Cotellessa explained the applicant would not; they would still be able to apply for a variance.
Vice-Chair Starr also questioned where the criteria for a special exception came from.
Planning Director Cotellessa explained that the criteria in the draft amendment were a compilation of several similar processes in several similar jurisdictions.
Vice-Chair Starr questioned whether staff was comfortable that the criteria in the draft were in fact what the North Carolina criteria for special exceptions are.
Planning Director Cotellessa explained that for any individual special exception, you can establish particular criteria for that; the criteria set forth in the draft amendment are in addition to the overall requirements for a special exception. Planning Director Cotellessa explained that the Town attorney has reviewed this draft amendment but she will check with him to be sure. There was a brief discussion regarding the requirements as established by North Carolina Law which generally deal with advertising, posting and notification procedures. These requirements must still be met. The additional criteria as detailed in the draft are Town specific.
Vice-Chair Starr questioned where the 5 foot maximum exception was derived.
Planning Director Cotellessa explained that this special exception amendment only applies to additions to existing single family structures. There was some discussion as to how height has been measured in the past and now.
Chairman Taylor indicated that the Board will need to be very careful early on in dealing with these types of situations so they make clear the intent of the text amendment.
There was further discussion as to how this process would work, with Planning Director Cotellessa noting again that home owner association approval would be necessary in order to come before this Board for a special exception.
Member Finch commented that there are numerous home owner associations which are not active and from which you may not be able to obtain written approval. There was discussion regarding the home owner approval and how to deal with those cases where an applicant simply cannot get a written response from their association.
Planning Director Cotellessa suggested perhaps adding language that the applicant must submit an affidavit stating that such a process does not exist in their community or documenting notifications and applications made to inform the community and solicit their approval.
Vice-Chair Starr suggested including some time frame in which the association must act upon the notification from the home owner.
Planning Director Cotellessa stated that this would safeguard the community by ensuring that they receive proper notification and the opportunity to weigh in.
Vice-Chair Starr stated that the Sanderling ARC must respond within 30 days of an application otherwise it is deemed approved.
Planning Director Cotellessa indicated that she would hesitate to specify a finite date because there may be differing circumstances. The documentation process that the applicant presents may simply be enough and provide the Board with an understanding of the situation.
Member Finch expressed concern that this policy could potentially put the Town in the position of taking sides with the home owner or the association and he did not think that was a position the Town would want to be in. Why should the Town take the word of the home owner or the association when they are both arbitrary he questioned.
Planning Director Cotellessa explained that this particular action is a discretionary action; it is not by right. One of the issues that must be considered when dealing with discretionary actions, such as a special exception, are the impacts on the community.
There was a brief discussion regarding height and fill issues. Planning Director Cotellessa advised the Board that Planning Board will have their final review of the draft fill regulations in April, and then Town Council will review the regulations in May.
Member Drewyer inquired regarding the outcome of the Four Seasons special exception that Council heard. Planning Director Cotellessa explained that the applicant was granted an exception from the moratorium.
BOARD COMMENTS
None.
ADJOURNMENT
Chairman Taylor adjourned the meeting.
The time was 2:48 p.m.
Approved: ______________________________________________
/s/ Secretary