TOWN OF DUCK
BOARD OF ADJUSTMENT MINUTES
FRIDAY, MAY 20, 2005
The Board of Adjustments for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, May 20, 2005.
BOARD OF ADJUSTMENT MEMBERS PRESENT: Chairman Sam Taylor, Members Olin Finch, Patty Wander, Denver Lindley and Darwin “Doc” Drewyer (alternate participating). Others present: Planning Director/ Zoning Administrator Sue Cotellessa and Board of Adjustment Clerk Sandy Cady.
Vice-Chair Allan Starr was absent. Chairman Taylor let it be known for the record that a full quorum was present.
OTHERS PRESENT: Attorney Wyatt Booth representing Rick and Trisha Edwards, Applicants Rick and Trisha Edwards and Residents Jim and Donna Campbell and Charlie Pratt. Rick and Trisha Edwards arrived shortly after the meeting convened.
The meeting was called to order by Chairman Taylor, at 2:00 p.m.
2. BUSINESS MEETING (Regular Members and Alternates Participate)
Chairman Taylor noted that at the previous meeting of April 1, 2005 the Board had a rather extensive discussion regarding the zoning text amendment that preceded and pre-empted this special exception hearing and as was evidenced in the draft minutes of April 1, 2005. He indicated that would like to have the Planning Director Cotellessa provide a brief report on the ordinance as it was finally adopted indicating to what extent the Board comments were incorporated once the minutes were approved.
A. APPROVAL OF MINUTES FROM APRIL 1, 2005 (Only Board members acting on that date shall vote on the approval)
Member Lindley made a motion to approve the Minutes of April 1, 2005 as presented.
Member Drewyer seconded the motion.
Motion carried 4-0.
At Chairman Taylor’s request, Planning Director Cotellessa explained that a new zoning text amendment was approved by Town Council to allow for a special exception process to enable property owners, that have certificates of occupancy from Dare County but who do not meet current requirements, to make improvements that make logical sense. This is a discretionary process whereby applicants must meet certain criteria; i.e. homeowner association approval, notification to adjacent property owners, a 4 out of 5 vote from this Board, and several other requirements.
Chairman Taylor commented that Member Finch had suggested that homeowner association approval is not always possible. He asked for clarification as to whether the ordinance was modified any to address that issue.
Planning Director Cotellessa indicated that the applicant can submit an affidavit stating that such a process does not exist in this community thereby placing the onus back on the applicant.
It was also clarified that while adjacent property owners are notified of the special exception request, their approval of the special exception is not required.
3. Special Exception Hearing SE-05-001 (Regular Members and Designated Alternates Participate)
Chairman Taylor swore in Wyatt Booth, attorney representing the applicants, Jim and Donna Campbell, neighbors of the applicants, and Planning Director Cotellessa.
Planning Director Cotellessa provided the Board members with a brief overview of the circumstances offering into evidence her staff report. She noted that the agent for the applicants Rick and Trisha Edwards was Mark Kasten who was not present today, however he had sent Attorney Wyatt Booth in his absence to represent the Edwards. Ms. Cotellessa explained that the addition for which the applicants were seeking a special exception matches the existing roof line; however it exceeded the height limit of the Town. The applicants had met all of the criteria for a special exception, and it was staff’s recommendation that the Board approve this request based upon the draft findings that were included in their package.
Chairman Taylor commented that 38.6 feet was more than 10% over the height limit of the Town, and he wondered whether that height was specifically approved by Dare County.
Planning Director Cotellessa explained that Dare County did not require as-built surveys let alone height certificates and therefore, certificates of occupancy were often issued without the benefit of this information. She explained that in this particular case, the height was not an error. This addition was designed to match the house’s existing height. She further explained that this is not a unique situation; there are many other situations where property owners have acted in good faith but as a result of the standard practices of Dare County we are left in a dilemma. The Town has therefore provided for these kinds of issues to be addressed through a discretionary process.
Chairman Taylor asked for public comments.
Mr. and Mrs. Campbell were recognized to speak. Mr. Campbell indicated the he and his wife had no objection to the Edwards’ addition, but they wanted to know how this house could have been ok at one time and now it is not. They were also curious about the process and how this Board would handle this matter.
Wyatt Booth, Esquire was recognized to speak. He noted that the applicants Rick and Trisha Edwards had arrived at the meeting. Mr. Booth concurred with the facts that Ms. Cotellessa had presented and expanded upon them. He noted that the house was built in the early 1980’s, and after the Edwards’ purchased the house they had decided to add an addition to the rear of the house. Mr. Booth gave a brief description of the addition, including the basis for the addition’s location and design from an architectural, orientation, practical and privacy standpoint. Height did not even occur to the architect as an issue because the addition was going to match the existing roof. He offered photographs to the Board members for their review.
Mr. Booth went on to note that all of the criteria in the Town’s ordinance had been met. All necessary fees have been paid; homeowner association approval has been obtained; no negative impacts were foreseen; it was consistent with the Land Use Plan; it was practical in the sense that it continues an existing roof line thereby maintaining the architectural integrity; the height encroachment was 3 feet where the Board may actually allow a 5 foot maximum; the orientation of the addition maximized privacy; and the addition enhanced the Tuckahoe development with a well-designed addition.
It was also again noted that staff recommended approval of this special exception.
Chairman Taylor closed the public hearing.
Member Finch questioned whether it made any difference what the height was approved at through Dare County.
Planning Director Cotellessa indicated that it did in terms of hearing the exception under this ordinance, because the ordinance is only applicable to houses that received Certificates of Occupancy prior to July 1, 2003. Therefore, if it were something new, this ordinance would not be applicable. She further clarified that the criteria under this ordinance is very specific; it does not say that you had to meet the criteria in place at the time, you simply needed to have a Certificate of Occupancy/Completion as of July 1, 2003. Ms. Cotellessa explained the Town is trying to rein in future problems and at the same time be practical with previous problems.
There was a brief discussion as to the way things were looked at in the past under Dare County.
Member Wander made a motion to adopt the Order Granting a Special Exception with its conclusions and findings therein.
Member Finch seconded the motion.
Motion carried 5-0.
Mrs. Campbell was recognized to speak and questioned why this height issue was not caught before the addition was constructed.
Chairman Taylor suggested that it would be caught now. Planning Director Cotellessa indicated that it may be caught now, and offered some explanation as to how this occurred.
Member Finch noted that in this instance, the height was overlooked by several people before it got to this point.
Mr. and Mrs. Edwards thanked the Board.
OTHER BUSINESS
Chairman Taylor noted that Planning Director Cotellessa had indicated to him that Town Council had not yet made new appointments or re-appointments to the Board so it was anticipated that they would hold their elections at their next meeting.
STAFF COMMENTS
None.
BOARD COMMENTS
None.
ADJOURNMENT
Member Drewyer made a motion to adjourn the meeting.
Member Lindley seconded the motion.
Motion carried 5-0.
The time was 2:37 p.m.
Approved: ______________________________________________
/s/ Secretary