TOWN OF DUCK
BOARD OF ADJUSTMENT MINUTES
FRIDAY, DECEMBER 14, 2007
The Board of Adjustment for the Town of Duck convened at the Duck Municipal Offices at 2:00 p.m. on Friday, December 14, 2007.
BOARD OF ADJUSTMENT MEMBERS PRESENT: Chairman Sam Taylor, Members Patty Wander, Eileen Neren, and Alternate Ken Yarbrough. Staff present: Director of Community Development Andy Garman, and Board of Adjustment Clerk Sandy Cady.
Chairman Taylor stated that a quorum was present and that Alternate Ken Yarbrough would be participating in Allan Starr’s absence. He noted that Olin Finch and Ken Benton were also absent.
OTHERS PRESENT: Appellant David and Diane Kapostasy, Scott Woolard of Sea Thru Construction and Joe Blakaitis.
The meeting was called to order by Chairman Taylor, at 2:00 p.m.
QUASI-JUDICIAL HEARINGS (Regular Members to Participate)
SE 2007-004 A special exception application, submitted by Diane and David Kapostasy, property owners at 122 Ocean Bay Boulevard, also known as Lot 17 and portions of Lots 16 and 18, Sound Sea Village, in Duck, North Carolina. Pursuant to Zoning Ordinance Section 156.054, the special exception request is to allow the continuance of an existing deck and stairs on the south side of the existing residence that do not meet the required front yard setback from the south property line (approximately 19.8 feet for the stairs, where 22 feet is required, and 22.8 feet for the deck, where 25 feet is required). The original house was sited in its current location on the property in 1987, after zoning was adopted in Duck. The house was approved to be constructed at 25 feet from the property line; however, as noted above, the final location of the house was not in accordance with the approved plan.
Chairman Taylor asked if any Board Members wished to disclose any information and recuse themselves. There being no one, Chairman Taylor swore in applicant David Kapostasy, Scott Woolard of Sea Thru Construction and Director of Community Development Andy Garman.
Based upon the application received, proper notice having been provided and all witnesses having been sworn in, Chairman Taylor called on Director of Community Development Andy Garman to present his report.
Director Garman provided a brief overview of the circumstances as detailed and submitted in his staff report. He noted that in the original development plan, the house was approved to be twenty-five (25) feet from the property line, which was the front yard setback in effect at the time the house was built. He stated that, based on a later survey, the house was found to be within the front yard setback with the deck 22.3 feet from the front property line, putting it 2.7 feet into the front yard setback. He stated that the stairs were 19.8 feet from the front yard property line, putting it 5.2 feet in the front yard setback. He added that the stairs can, based on the Town’s ordinances, encroach up to three (3) feet on the front yard setback. He stated that the encroachment represented only 2.2 feet for the stairs alone. He stated that based on staff’s research, it was discovered there was an error in the original location of the deck and stairs.
Chairman Taylor stated that he understood that the deck encroached, but was less than three (3) feet. He asked if that was correct. Director Garman stated he was correct. Chairman Taylor clarified that since it was less than three (3) feet, it was an uncovered deck and automatically exempt. Director Garman stated that uncovered decks were not allowed to encroach, but the uncovered stairs were. Chairman Taylor asked if the deck did encroach into the front yard. Director Garman stated it did by 2.7 feet. Chairman Taylor asked if the application was for both the deck and stairs. Director Garman stated it was.
Director Garman stated that staff first learned of the issue when Scott Woolard of Sea Thru Construction came in to apply for a permit to put on an addition to the house. He stated that staff asked Mr. Woolard to correct the problem by going through the Board of Adjustment and applying for a special exception or by removing the encroachment. He stated that the Kapostasys received a Certificate of Occupancy from Dare County as Dare County did not require an as-built survey to verify the location of the final structure. He stated that the encroachment was slightly greater than what could be approved administratively through an error in building location. He stated that the special exception request was considered a minimal one and that staff recommended approval of the request. He added that the Sound Sea Village Homeowner Association had no objection to the special exception request.
Member Ken Yarbrough asked if by approving the special exception, the Board would not only be endorsing the current nonconforming status but if something were to happen to the home in the future, the applicant would not have to go through another procedure. Director Garman stated that it was a straight, special exception request and if the applicant wanted to do anything to the existing deck or stairs, they would not be required to come back for another special exception. He added that if the applicant wanted to do anything different, the special exception would not allow them to build something above or below what was already encroaching.
Member Neren clarified that if the applicant wanted to change their deck, they would have to conform to the current standard. Director Garman stated that if the applicant wished to rebuild the deck in the exact footprint, the special exception would allow them to do it. He stated that if they were to make additional changes, it would represent nonconformities.
David Kapostasy was recognized to speak. Mr. Kapostasy thought the 2.7 feet encroachment was a 2.5 foot easement, making them over by .7 feet with regard to the deck. Director Garman stated that the Town has a procedure by which staff can grant administratively an error in building location that allows up to ten percent (10%) into any required yard. He stated that the front yard was 25 feet, making it 2.5 feet. He stated that the applicant was 2.7 feet into the front yard, slightly greater than what could have been granted administratively. Mr. Kapostasy stated that staff did a great job in detailing the specifics of the case. He added that the home will be one they will use for their retirement. He asked that the Board follow the recommendation of staff.
Scott Woolard was recognized to speak. Mr. Woolard noted that the whole entire front of the deck was not encroaching on the front setback but just a small triangle was.
Member Yarbrough stated that it looked like the steps encroached 5.2 feet into the 25 foot setback. He clarified that the three (3) foot allowance was for steps into the front setback. Director Garman stated he was correct.
Chairman Taylor stated he had visited the site recently. He clarified that the applicant will be replacing the steps at some point and possibly installing a pool. Mr. Kapostasy stated he was correct.
Member Neren stated that the special exception appeared to meet all criteria that the Board had to consider. Chairman Taylor noted that there were no objections to the special exception request.
Chairman Taylor felt it was fairly straightforward. He clarified that the Board would not be meeting if the issue was the small corner of the deck. Director Garman agreed. He thought the stairs, cost-wise, was the biggest item. Chairman Taylor asked if the deck encroachment could have been waived. Director Garman stated it was slightly greater than what would have been allowed administratively by an error in building location. Chairman Taylor noted that looking at the house from the street; it was not noticeable that there was an encroachment. Member Neren added that it was not bothering any of the Kapostasy’s neighbors.
Chairman Taylor stated he had asked Director Garman before the meeting if there was some way that the Board could grant the exception until such time a request to remove or replace the stairs was made. He noted that the stairs were a large encroachment and could be moved. He stated that granting the exception did not bother him as it was a non-event, but practically he thought it was hard for the Board to justify granting something in one instance and not in another. He wondered how it would be defined. Member Yarbrough thought the difference was that the applicant was not working on that part of the house, where in other cases, the owners were.
Member Neren stated she was surprised that Director Garman had indicated that the stairs could be replaced. She understood the rules to read that if a homeowner did any work that was not within the ordinance, they would have to conform to the ordinance. Chairman Taylor stated that if the Board granted the exception, it would not be the case. Member Neren disagreed. Chairman Taylor thought that the exception went with the property. Director Garman agreed. He stated it was not like a nonconformity. He stated that this exception request fell into the category of not being built legally. Member Yarbrough clarified that the reason for it was that an as-built survey was not required at the end of construction. Director Garman agreed. He stated that just because an error was done by a permitting agency, it would not make it legal.
Member Neren clarified that the structure would be legal if the Board granted the variance. Director Garman it would be based on the conditions of the special exception. He stated that the special exception would allow it to remain in the exact location under the conditions that it exists in presently. Chairman Taylor didn’t think it would bother the applicants if the Board put a condition on the exception that stated that at the time the stairs were redone, that they be moved. He stated that the question was if the Board could change the exception grant to make an exception for it. Director Garman thought the special exception would make it a legal nonconformity so the owner could maintain it the way it was. He noted that if they wanted to rebuild it, it would have to come into compliance. Member Neren stated that she had thought that was how it would work. Director Garman stated that a condition could be placed on it. Member Neren suggested that the exception be in effect until further work is done. Director Garman stated that there were several other instances where conditions were placed on things in the past. He stated that a condition could be written in the variance that they would have to meet the setback requirements if they replaced the stairs. Chairman Taylor asked if the condition could be put in the variance. Director Garman stated it could. Chairman Taylor thought by adding the condition, it would meet everyone’s needs.
Chairman Taylor asked what would be put in the variance. Director Garman stated that at the end, it stated: “…it is ordered that the application for special exception be granted…” He suggested adding the following language: “…, with the following conditions…” and add the conditions. He stated it was done like that on a previous variance. He stated that a motion could be made to state the intent of what the Board wished to grant and he could come back with a draft that would be signed. Member Wander clarified that it would still allow for maintenance and small repairs. Director Garman stated it would. He stated that if the applicant wished to tear it down and reconstruct it, the stairs would have to put behind the setbacks. Scott Woolard stated that if the stairs had to be replaced, he would put them within the setbacks.
Motion carried 4-0.
Chairman Taylor stated that a copy of the variance would be mailed to the applicant. David Kapostasy thanked the Board for their help.
Member Yarbrough asked what would happen if the ownership of the property was transferred. Director Garman stated that the special exception would stay with the property.
APPROVAL OF MINUTES FROM MARCH 30, 2007 (Only Board Members acting on that date shall vote on the approval)
Member Wander moved to approve the minutes of March 30, 2007 as presented.
Member Yarbrough seconded the motion.
Motion carried 4-0.
OTHER BUSINESS
None.
STAFF COMMENTS
Board Clerk Cady pointed out that Suzanne Cotellessa was the secretary to the Board. She thought a new secretary needed to be appointed.
Chairman Taylor moved to appoint Director Andy Garman as the secretary to the Board. Member Neren seconded.
Motion carried 4-0.
BOARD COMMENTS
Chairman Taylor asked if the codified ordinances the Board received were the full and complete set. Board Clerk Cady stated it was the zoning section. Director Garman stated it was the land use section, which included the flood damage prevention ordinance, subdivision ordinance, zoning ordinance and ordinances related to the building code. He noted that it did not include the entire Town code. Chairman Taylor clarified that it was only the zoning ordinances. Director Garman stated they were the ordinances related to land development. Member Yarbrough asked if there were any regarding vegetation. Director Garman stated there was. Board Clerk Cady noted that the codified ordinances were updated through July 5, 2007. Chairman Taylor clarified that they were all the ordinances that the Board needed to be able to carry out its work. Director Garman stated he was correct. Board Clerk Cady stated that it did not include ordinances regarding driving on the beach or dogs on the beach.
ADJOURNMENT
Chairman Taylor made a motion to adjourn the meeting.
Motion carried 4-0.
The time was 2:49 p.m.
Approved: ______________________________________________
/s/ Secretary