TOWN OF DUCK Board of Zoning Adjustment Minutes for May 19, 2006

BOARD OF ADJUSTMENT MINUTES

FRIDAY, MAY 19, 2006

The Board of Adjustments for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, May 19, 2006.

BOARD OF ADJUSTMENT MEMBERS PRESENT: Chairman Sam Taylor, Vice Chairman Allan Starr, Members Olin Finch, Patty Wander, and Alternate Ken Benton. Others present: Planning Director/ Zoning Administrator Sue Cotellessa, Town Attorney Donald I. McRee, Jr. and Board of Adjustment Clerk Sandy Cady.

Chairman Taylor let it be known for the record that a full quorum was present and that Alternate Ken Benton would be participating in Eileen Neren’s absence.

OTHERS PRESENT: Appellants Jackie Orsulak, Kevin and Gail Kuchem and Lawrence McGovern.

The meeting was called to order by Chairman Taylor, at 2:03 p.m. Chairman Taylor called for a moment of silence in memory of Darwin “Dock” Drewyer, who had passed away since the last Board of Adjustment meeting.

OTHER BUSINESS

A. Presentation by Town Attorney Donald I. McRee, Jr. on Conflict of Interest Laws

Chairman Taylor stated that the order of the meeting would be changed slightly to accommodate the Town Attorney’s presentation.

Town Attorney Donald I. McRee, Jr. was recognized to speak. Town Attorney McRee stated that this was a timely request of the Board. He stated that the General Assembly in the 2005 session had a number of changes to the general statutes regarding planning and zoning and Boards of Adjustment in particular. He stated that it clarifies what a conflict of interest is as it relates to membership and participation in a Board of Adjustment proceeding.

Town Attorney McRee pointed out that the Board is considered a quasi-judicial body – like a court – and that the Board has a higher level and a higher standard when making a determination regarding a conflict of interest. He went on to give examples of what constitutes a conflict of interest to the Board. He indicated that when a conflict of interest arises that affects a Board Member, the Member should recuse themselves and leave the building so as not to influence any debate or discussion among the remaining Board Members.

Chairman Taylor thanked Town Attorney McRee for his presentation.

QUASI-JUDICIAL HEARINGS (Regular Members and Designated Alternate to Participate)

BOV-2006-001 A variance, submitted on April 12, 2006 by Jackie Orsulak, property owner, to permit location of a playhouse approximately 5’ (five feet) from the rear and east side setback lines where 25’ (twenty-five feet) and 10’ (ten feet) are required respectively, at 104 S. Snow Geese Drive, NC 27949, also known as lot 3 in the Snow Geese South subdivision.

Chairman Taylor swore in applicant Jackie Orsulak, resident/property owner Nicki Johnson and Planning/Zoning Administrator Sue Cotellessa.

Chairman Taylor asked if any Board Members wished to disclose any information and recuse themselves. Member Patty Wander recused herself from the meeting for this hearing indicating that she has a close, personal friendship with the applicant. Chairman Taylor pointed out that as a result of Member Wander’s recusal, there would only be four (4) members on the Board that could vote. Since four (4) votes are required for her variance, Ms. Orsulak would have to receive a 4-0 vote on her hearing. He asked Ms. Orsulak if she wished to wait or proceed. Jackie Orsulak stated that she wished to proceed with the hearing.

Based upon the application received, proper notice having been provided and all witnesses having been sworn in, Chairman Taylor called on Planning/Zoning Administrator Sue Cotellessa to present her report.

Planning/Zoning Administrator Cotellessa provided a brief overview of the circumstances as detailed and submitted in her staff report. She noted that the request was for a play structure that was approximately 8 by 10 feet in dimension on Ms. Orsulak’s property on the rear and east side lot line. She stated that the property is a small one and due to the current location of the septic tank and field, the Health Department has not approved the placement of the structure within the setback lines. She stated there is no issue with respect to lot coverage, but that the issue before the Board is a setback variance. Staff recommendations were based on the review of the criteria for a variance and believed there were no special circumstances or conditions. She stated that there are other locations available to locate the play structure. She noted that all notifications have been provided for as required by law. She stated that if the variance is granted, it should be the minimum necessary to make possible reasonable use of the land. Planning/Zoning Administrator Cotellessa stated that staff does not recommend approval based on the review of the criteria.

Chairman Taylor asked if the structure was portable. Planning/Zoning Administrator Cotellessa stated that in the Board’s packets, there were photographs of the structure. She stated that structures such as Ms. Orsulak’s are considered an accessory structure. She stated that temporary structures are not addressed, but accessory ones are.

Member Finch asked if the structure could be relocated to the front of the property. Ms. Orsulak stated that there were no setback lines as her house is round. She stated that the septic field was put in around 1980. She stated that she did not know there was a problem until the Health Department came out years later to give her a building permit. Member Finch asked if the septic tank was near the house. Ms. Orsulak stated that it is on the right hand side of the house and is closer to the house than Dare County Health Department had proposed. She stated that she thought she could put the structure on the left hand side of the house, but it would not fit there.

Vice Chair Starr pointed out that the earlier report stated that the playhouse could be located on the southwest side of the house. However, he heard the applicant state that it was not possible. He felt it should be a factor and not an issue. He asked if the structure could be put on the southwest corner. Ms. Orsulak stated it could not. Planning/Zoning Administrator Cotellessa stated that the as-built does not reflect the current site that is under construction. She stated that based on the as-built it could be done, but on her understanding of the built condition, it could not.

Member Finch asked if there was a site plan for the proposed construction. Planning/Zoning Administrator Cotellessa stated there was. Member Finch asked if a copy was available. Planning/Zoning Administrator Cotellessa stated that there was, but it showed the septic in a different area than where it actually is.

The Board Members discussed areas where the playhouse could be put on the property. Chairman Taylor asked Ms. Orsulak if she could put the playhouse in an area that the Board Members had discussed. Ms. Orsulak stated she would not for aesthetic reasons.

The Board Members discussed septic and setbacks regarding the playhouse with Ms. Orsulak. Ms. Orsulak pointed out that there is a large distance between her home and the one next door to her.

Nicki Johnson of 115 South Snow Geese was recognized to speak. Ms. Johnson stated that she is a property owner in South Snow Geese. She stated that she is concerned about the exceptions being granted on Ms. Orsulak’s lot. She believed that an exception was already granted by the homeowner association in terms of having accessory structures on lots. She stated that for Ms. Orsulak to ask for another exception raises the question on the appropriateness of the structure and setting a precedence for other accessory structures. She stated that she would like the Board to consider staff recommendations on denying the exception.

With no further witnesses and no questions from the Board members, Chairman Taylor closed the public hearing, gave a brief summation and asked the Board for their thoughts.

Member Finch stated that he had no heartburn with the location but wondered how to rationalize granting the exception.

Vice Chair Starr stated he had a hard time justifying the variance. He didn’t feel it was an appropriate case for a variance.

Member Benton agreed with Vice Chair Starr’s comments.

Chairman Taylor agreed with Vice Chair Starr’s comments as well. He felt the structure did not meet the requirements. He stated that by looking at the historical justification, a variance could be granted but he was not comfortable with granting one.

Member Finch stated that there will not be a large monetary hardship for Ms. Orsulak. He stated that the structure is in the setback and that is the problem. He stated that she would need to show a unique circumstance for the Board to grant a variance.

Town Attorney McRee suggested Chairman Taylor review the draft findings for the variance. Chairman Taylor thought the Board had already been through them. Planning/Zoning Administrator Cotellessa suggested he review them for the applicant. Chairman Taylor then reviewed the draft findings of the variance.

Planning/Zoning Administrator Cotellessa clarified Condition 3 as: “It is the Board’s conclusion that the special conditions and circumstances do result from the actions of the applicant. This conclusion is based on the following findings of fact: The applicant has chosen to make renovations that may not allow placement of the structure in the location that she’s chosen.” She stated that it was a choice issue.

Chairman Taylor and the Board continued reviewing the draft findings of the variance.

Planning/Zoning Administrator Cotellessa clarified Condition 5. She stated that if the Board’s intent is to have the conclusion read that the variance will not be in harmony and will be injurious to the findings of fact, it should state the following: “This instance does not uphold the integrity of the ordinance with respect to setbacks and could be injurious to the ordinance.”

Chairman Taylor summarized and asked the Board for a motion.

Vice Chair Starr made a motion to approve the Order denying the variance with its conclusions and findings therein.

Member Finch seconded the motion.

Motion carried 4-0.

Chairman Taylor asked Board of Adjustment Clerk Sandy Cady to bring Member Wander back to the meeting.

BOV-2006-002 A variance, submitted on April 13, 2006 by Kevin and Gail Kuchem, property owners, to permit 43.2% lot coverage where a maximum of 30% lot coverage is permitted at 1347 Duck Road, Duck, NC 27949, also known as lot 66 in the Carolina Dunes subdivision.

Chairman Taylor asked the Board if anyone had a conflict with the variance request that they would need to be recused. There being no one, Chairman Taylor swore in applicants Gail and Kevin Kuchem, resident/property owner Ron Forlano and Planning/Zoning Administrator Sue Cotellessa.

Based upon the application received, proper notice having been provided and all witnesses having been sworn in, Chairman Taylor called on Planning/Zoning Administrator Cotellessa to present her report.

Planning/Zoning Administrator Sue Cotellessa provided a brief overview of the circumstances as detailed and submitted in her staff report. She noted that detailed options were provided to the applicant regarding changes that were made to the property before the applicant purchased the house. She stated that there are no peculiarities to the land or structure. She stated that while the situation is unusual in that the applicants bought the property the way it presently exists, there is no deprivation. She stated that granting the variance would constitute a special privilege. Planning/Zoning Administrator Cotellessa indicated that staff does not believe the variance request was consistent with the approval and recommended denial. She stated that staff further recommends that if the Board denies the variance, that the Board direct the property owner to bring the property in compliance with the ordinance regulations. She stated that this is purely a lot coverage issue.

Applicant Kevin Kuchem was recognized to speak. Mr. Kuchem stated that their property is on an interior lot and is landscaped. He stated that a lot of people use their driveway to turn around. He stated that they have added natural landscaping to the property and have put in an irrigation system as well. He stated that one of the issues he was aware of was water runoff. He stated that his property is unique in that there is a thirty-six inch (36”) drop from the street to their home. He stated this was not caused by him and to cut out a portion of their driveway and put another type of material in would cause a messy situation. He stated that because their lot is sloped, any gravel that is put in would cause personal situations that could be dangerous as some of their family members are handicapped. He pointed out that the gravel could also go out on the Duck Trail and would be a hazard there as well. Mr. Kuchem presented photographs to the Board of his property.

The Board members then discussed the issue with the Kuchems, including a strategic location of concrete that would accommodate their issue with handicap entry.

Ron Forlano of 1378 Duck Road was recognized to speak. Mr. Forlano stated that he lives across the street from the Kuchems. He stated that the house is not out of proportion to the lot size. He asked for what reason are the Kuchems being penalized for something that was created by someone else. He asked what would be accomplished by pulling out the concrete and putting in stone. He didn’t think that the Kuchems needed to be penalized.

Vice Chair Starr asked if the previous owners of the home had submitted the site plan showing the concrete in the driveway, would they have been over the total lot coverage. Planning/Zoning Administrator Cotellessa stated that the previous owners would not have been allowed to construct the driveway.

Member Wander asked how granting the variance would be detrimental to neighboring properties. Planning/Zoning Administrator Cotellessa stated that it has to do with the Board’s need to uphold regulations of the Zoning Ordinance. She stated that granting a variance is a special granting to an individual property owner who shares the same condition with adjacent property owners. She stated that it abrogates the intent of the ordinance. She pointed out that the job of the Board is to uphold the ordinance.

With no further witnesses and no questions from the Board members, Chairman Taylor closed the public hearing and summarized. He notied that the variance was not a result of the Kuchem’s own action and that the building permit application had revealed an illegal situation. Chairman Taylor went on to review the draft findings of the variance with the Board.

Member Finch felt with Condition #1 that the Kuchems have an advantage to being on Duck Road as they are farther away from the roadway. Member Benton pointed out that Duck Road has the Duck Trail, which is a big issue, especially with the gravel driveway. Chairman Taylor stated that the topography would wash the gravel back to the house and not to Duck Road and the Duck Trail. Vice Chair Starr pointed out that there are other issues and circumstances to consider.

Member Wander asked if the Board has to find for the applicants on each Condition of the variance request. Planning/Zoning Administrator Cotellessa stated that the Board has to find for the applicants for each condition. Member Wander asked if the Board found three (3) out of four (4) reasons to grant the variance, would the variance pass. Town Attorney McRee stated that the variance would then fail. He stated that the Board would have to make an affirmative finding for the vote on each finding. He stated that if the Board has a problem with Condition #1, there would be no need for further analysis. Chairman Taylor clarified that if Condition #1 is a problem, then the request is finished. Town Attorney McRee stated he was correct. Town Attorney McRee pointed out that each and every element has to have an affirmative finding in order for the variance to be granted.

Chairman Taylor reviewed Condition #1 again with the Board.

Gail Kuchem was recognized to speak. Ms. Kuchem questioned the reason for a variance. Planning/Zoning Administrator Cotellessa stated that a variance in Land Use is meant to be as an avoidance of some unreasonable condition where a homeowner cannot make any reasonable use of the property unless the Board gives permission to do so. Town Attorney McRee stated that without a variance, a homeowner cannot make reasonable use of the property. He stated that when a Board grants a variance, it should always be a minimal one.

Vice Chair Starr suggested that the applicants go back to the drawing board to see if they can take six point two (6.2) feet of concrete out of their driveway, starting with the southeast corner of their home and work back towards the road for approximately fifty-three (53) feet.

Chairman Taylor asked if the variance hearing could be adjourned so the Board could suggest that the engineer look at the site plan again and ask Planning/Zoning Administrator Cotellessa if she could sign off on it and without having to submit another application, either withdraw the application or come back to the Board to continue the hearing. Town Attorney McRee stated that the Board could recess to a date, time and place that are certain. He stated that the Board could recess but not reconvene with less than forty-eight (48) hours public notice.

Member Finch felt that the concrete issue was a minor one that could be dealt with. Vice Chair Starr stated he could not find affirmatively for all counts of the variance application.

Chairman Taylor then asked the Board for a motion for Condition #1 as to whether or not special conditions exist which are or are not peculiar. Member Benton moved that there are special and peculiar circumstances that exist with the property. Member Finch seconded the motion.

Motion carried 4-1 with Chairman Taylor dissenting.

Chairman Taylor asked the Board for a motion for Condition #2. Member Finch moved that the provisions of the zoning ordinance would not deprive the applicants of rights commonly enjoyed by other properties in the same district. Vice Chair Starr seconded the motion.

Motion carried 4-1 with Member Benton dissenting.

Town Attorney McRee pointed out to the Board that because of these two (2) votes, the Board would be unable to grant the variance.

Member Wander moved to deny the variance application. Vice Chair Starr seconded the motion.

Motion carried 4-1 with Member Benton dissenting.

SE 2006-003 A special exception, submitted on April 7, 2006 by Lawrence E. McGovern, property owner, to permit construction of a bathroom and additional living space within the footprint of an existing dwelling that encroaches approximately 7’ (seven feet) upon the 25’ (twenty-five foot) rear setback (i.e. located approximately 18’(eighteen feet) from the rear lot line) for property at 114 Wampum Drive, Duck, NC 27949, also known as lot 34 in the Poteskeet Village subdivision.

Chairman Taylor asked the Board if anyone had a conflict with the variance request that they would need to be recused. There being no one, Chairman Taylor swore in applicant Lawrence McGovern and Planning/Zoning Administrator Sue Cotellessa.

Planning/Zoning Administrator Sue Cotellessa provided a brief overview of the circumstances as detailed and submitted in her staff report. She noted that the owner wished to make changes to the ground level of his home. She stated that the applicant is looking to build under the existing footprint of the house and staff feels he has met the criteria to minimize the effect on adjacent properties. She stated that staff recommends approval of this application for a special exception.

The Board, Planning/Zoning Administrator Cotellessa and Town Attorney McRee discussed the difference in granting a variance and granting a special exception.

Applicant Lawrence McGovern was recognized to speak. Mr. McGovern stated that he appreciated that Board taking time to hear his case. He stated that he feels like a victim as he thought his property was ok until he wanted to do improvements to his home and found out his home was an illegal structure. He stated that when he went to the closing for his house, there was a survey done that pointed out that the house had violated the setbacks. He thought that since he had his Certificate of Occupancy, he didn’t think he had a problem.

With no further witnesses and no questions from the Board members, Chairman Taylor closed the public hearing and summarized. He then asked the Board for a motion.

Vice Chair Starr made a motion to adopt the Order Granting a Special Exception with its conclusions and findings therein.

Member Benton seconded the motion.

Motion carried 5-0.

APPROVAL OF MINUTES FROM JANUARY 6, 2006 (Only Board Members acting on that date shall vote on the approval)

Member Wander moved to approve the minutes of January 6, 2006 as presented.

Member Benton seconded the motion.

Motion carried 4-0.

STAFF COMMENTS

None.

BOARD COMMENTS

None.

ADJOURNMENT

Member Benton made a motion to adjourn the meeting.

Motion carried 5-0.

The time was 5:22 p.m.

Approved: ______________________________________________

/s/ Secretary (approved March 9, 2007)