NC - Huntersville: Board of Adjustment

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Board of Adjustment

Board of Adjustment Regular Board of Adjustment Meeting Agenda

Town Hall

A.
Roll Call, Determination of Quorum

B.
Approval of Minutes B.1. Consider approval of the March 13, 2018 Regular Meeting Minutes

No additional detail provided

C.
Hearing of Cases C.1. V18-03: 7411 Capri Drive

No additional detail provided

Tagged Passions:hearing

D.
Other Business

No additional detail provided

Tagged Passions:business

E.
Adjourn

No additional detail provided

1
1 Town of Huntersville Board of Adjustment

To: Board of Adjustment

From: Michelle Haines, Planning

Date: 6/12/18 Subject: Consider approval of the March 13, 2018 Regular Meeting Minutes

Tagged Passions:planning

EXPLAIN REQUEST: Consider approval of the March 13, 2018 Regular Meeting Minutes

ACTION RECOMMENDED: Approve Minutes FINANCIAL IMPLICATIONS:
Tagged Passions:finance

ATTACHMENTS: March 13.pdf

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Page 1 of 9

Board of Adjustment Regular Board of Adjustment Meeting

Minutes March 13, 2018 - 6:30 PM

Town Hall

A.
Roll Call, Determination of Quorum Quorum was determined, and Chairman Kluttz called the meeting to order. All Regular Members were in attendance: J. Kluttz, Chairman, B. Welch, Vice Chairman, D. Brewer, S.

Tagged Passions:alcohol

Genenbacher, T. Primiano, E. Rowell, and W. Smith. Alternate Members in attendance were E. Cecil and J. Bradshaw.

No additional detail provided

B.
Approval of Minutes

No additional detail provided

B.1. Approve Minutes A Motion to Approve the November 14, 2017 Regular Meeting Minutes was made by S. Genenbacher, and seconded by E. Rowell. Rowell asked the Board Secretary about attendance for an Alternate member that was not present in November, and specific wording in the Motion for Caliber Collision, and made a Motion to amend the Minutes to reflect that a condition be placed on Caliber Collision in the Motion that the secondary access be open and unlocked during regular business hours. The Board Secretary explained attendance rules for Regular and Alternate members, and further noted Attendance Sheets are maintained, and also shared with the Town Board. The Board Secretary further responded that Motions as made by a Board member are transcribed and written based upon what is said and recorded. The Motion maker did not contain those specific words, but did include, 1) secondary access cannot be locked, and 2) that the secondary access as presented has to have the conditions outlined (phone, seating, and any other pedestrian friendly amenities that Caliber has in mind) . The Board Secretary is bound to only include in any Motion what was said, and cannot make changes for what is thought to be an omission, or include an assumed intent. The Motion to amend did not receive a second and therefore failed. The original Motion to Approve carried 7-0.

Tagged Passions:Pedestrian and business

C.
Hearing of Cases

No additional detail provided

Tagged Passions:hearing

C.1. V18-02: 15607 Knox Hill Road Chairman Kluttz made a call for full disclosure of the members prior to opening the hearing; none was made. Vice Chairman Welch performed the oath for testimony.

Motion to Grant was made by Toniann Primiano. In considering the findings of fact for V18-02, a request, by Sunmar Construction and Douglas Abell, Jr., for a variance from Article 8.11.6, the Board of Adjustment grants approval of the variance request based on findings that the request meets all four (4) of the 3 Page 2 of 9 criteria outline in the zoning ordinance for granting a variance. Dennis Brewer seconded the Motion. The findings are: there is unnecessary hardship that would result from the strict application; that this is peculiar to this property and the way the property is designed; and that this error happened in proportion to this property; that the hardship did not result from any connection or did not result from the property owner, but resulting from Mecklenburg County and the person who issued the zoning permit; and therefore, the variance should be granted on that; and we believe that the requested variance is consistent with the spirit, purpose, and intent of the ordinance. The Motion carried by 6-1, with E. Rowell opposing.

Tagged Passions:alcohol, property, hearing, ordinance, zoning, construction, and grant

Discussion: The Chairman opened the hearing, and called staff to testify. Meredith Nesbitt, Planner I, entered the Staff Report into the record, a copy of which is attached hereto as Exhibit A, and incorporated herein by reference.

BACKGROUND:

Tagged Passions:hearing

1.
The +/-0.397 acre subject property is located at 15607 Knox Hill Road in the Birkdale Subdivision. The subject property is zoned General Residential Conditional District (GR-CD) and is in the Mountain Island Lake Watershed Overlay Protected Area 2 (MIL PA-2) District.

Tagged Passions:subdivision, property, streets, watershed, and zoning

2.
The Town of Huntersville works with Mecklenburg County staff for issuing and inspecting all building permits in Huntersville s zoning distinction. During the permitting process (for property located in a major subdivision), zoning compliance is reviewed and approved by Mecklenburg County staff.

Tagged Passions:subdivision, property, compliance, and zoning

3.
In May 2016, Sunmar Construction began enquiring with Mecklenburg County about constructing a swimming pool on the subject property. At this time, County staff advised Sunmar Construction that based on Mecklenburg County environmental data (estimated impervious surface) the subject property was over the allowed maximum impervious surface. A permit for additional impervious coverage cannot be issued if the property is in violation of Watershed Built Upon Area restrictions.

No additional detail provided

Tagged Passions:property, watershed, environment, and construction

4.
On May 24, 2016, Huntersville staff met with Sunmar Construction to discuss options to achieve compliance with the impervious restrictions on this lot.

No additional detail provided

Tagged Passions:compliance and construction

5.
Between May 2016 and October 2016, impervious surface was removed (and inspected by Mecklenburg County staff) from the subject property to achieve compliance with Build Upon Area restrictions.

No additional detail provided

Tagged Passions:property and compliance

6.
On November 2, 2016, Mecklenburg County staff issued a building permit (through Winchester The County s electronic permitting system) to Sunmar Construction for the installation of the swimming pool on the subject property.

No additional detail provided

Tagged Passions:property and construction

7.
On November 27, 2017, Mecklenburg County Code Enforcement staff completed an on- site zoning inspection.

No additional detail provided

Tagged Passions:codes enforcement and zoning

8.
On December 4, 2017, a Notice of Violation letter was issued regarding the location of the swimming pool encroaching into the 15 rear yard setback. The swimming pool was constructed 10.4 from the rear property line.

No additional detail provided

Tagged Passions:property

9.
The Zoning Ordinance (Article 8.11.6) requires that swimming pools be located a minimum of 15 from any property line.

No additional detail provided

Tagged Passions:property, ordinance, and zoning

10.
In 2005, planning staff initiated a text amendment to amend the minimum setback for swimming pools from any property line. At the time, Article 8.11.6 required swimming pools to be located a minimum of 20 from any property line. Staff recommended the requirement be changed to a minimum of 5 from any property line.

No additional detail provided

Tagged Passions:property and planning

11.
On January 24, 2006, the Planning Board voted (7-3) to recommend approval of a 10 swimming pool setback from any property line in lieu of the 5 setback recommended by staff.

No additional detail provided

Tagged Passions:property and planning

12.
On February 20, 2006, the Town Board voted (5-0) to approve a minimum 15 setback from any property line, which is the current language in Article 8.11.6.

No additional detail provided

Tagged Passions:property

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Page 3 of 9

No additional detail provided

Findings of Fact with Staff s Conclusions (ordinance standards are in italics): In considering any variance request, the following Standards for Granting a Variance (Article 11.3.2.e) must be addressed with findings of fact:

Standards for Granting a Variance. When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following: 1) Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. Staff Findings: A. The strict application of the ordinance (Article 8.11.6) requires swimming pools to be no closer than 15 from all property lines. B. A building permit was issued by Mecklenburg County on November 2, 2016 for the construction of the swimming pool on the subject property. The permit was issued through Winchester (The County s electronic permitting system).
Tagged Passions:property, ordinance, zoning, construction, and grant

C.
The appropriate swimming pool setbacks were entered through Winchester. D. The rear yard setback for swimming pools does not show up on the printable

permit. At the time of writing this report, Town staff is working with Mecklenburg County staff to understand if there was a technical error involved.

E.
The swimming pool was constructed at 10.4 from the rear property line. The strict application of the ordinance requires compliance with the 15 swimming pool setback.

Tagged Passions:property, compliance, and ordinance

Staff Conclusion: Staff identifies the hardship as the zoning violation caused by the location the swimming pool. The strict application of the ordinance requires swimming pools to be located a minimum of 15 from all property lines. A building permit was issued for the construction of the swimming pool with the appropriate setbacks. However, a print out of the permit did not show the rear yard setback. The reason the rear yard setback is blank on the printable permit is unknown at the time of writing this staff report.

Staff does not make a recommendation on the merits of this criteria. 2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. Staff Findings: A. All property located in the Town of Huntersville must comply with Article

Tagged Passions:property, ordinance, zoning, neighborhood, construction, and grant

8.11.6, making the application of the swimming pool setback common to all property (with or seeking approval for a swimming pool).

Tagged Passions:property

B.
Staff has found no conditions (location, topography, soils, etc.) peculiar to the property that would have prevented the swimming pool s design and construction in a compliant location on the subject property.

Staff Conclusion: Appling the minimum 15 swimming pool setbacks (Article 8.11.6) is not peculiar to this property. All swimming pools in the Town are subject to the 15 setback. Staff did not find any conditions on the subject property that would have prevented the swimming pool from being located in a compliant location.

Tagged Passions:property and construction

Staff finds this criteria for granting a variance is not met. 3) The hardship did not result from actions taken by the applicant or the property

owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. Staff Findings: A. Sunmar Construction design, obtained permit approval, and constructed the swimming pool on the subject property. The zoning violation is a result of the swimming pool being constructed too close to the rear property line. 5 Page 4 of 9 B. Mecklenburg County and Town staff have been in conversation with Sunmar Construction and the property owner since May 2016 regarding the intent to construct a swimming pool.
Tagged Passions:property, purchasing, zoning, construction, and grant

C.
Article 8.11.6 (swimming pool regulations) have not been amended or proposed to be amended at any point during this time.

Staff Conclusion: The property owner and Sunmar Construction have been working with Town and County staff since May 2016 regarding the swimming pool. In this time, Article 8.11.6 has not changed. Contracted by the property owner, Sunmar Construction designed, obtained permitting, and constructed the swimming pool.

Tagged Passions:property, contract, regulation, and construction

Staff finds this criteria for granting a variance is not met. 4) The requested variance is consistent with the spirit, purpose, and intent of the

ordinance, such that public safety is secured, and substantial justice is achieved. Staff Findings: A. The purpose and intent of Article 8.11.6 is to provide regulations for swimming pools. B. The purpose of the 15 minimum setback from all property lines regulation is to provide a buffer/separation between swimming pools and neighboring properties.
Tagged Passions:property, public safety, ordinance, regulation, and grant

C.
The 15 swimming pool setback (Article 8.11.6) can be amended through the text amendment process.

D.
The applicant has reach out to the adjacent property owner (Birkdale Golf) at the rear of the subject property. The adjacent property owner does not wish to move the common property line (which is an option to achieve compliance) and has no objection [to the location of the swimming pool] as long as this does not encumber any golf course property .

Staff Conclusion of Findings: A statement was provided from the adjacent property owner (closest to the area of violation) that they have no objection as long as the golf course property is not encumbered. With the required fencing around the pool staff is not concerned about general public safety. With the existing tree line between the pool and the adjacent property staff finds the purpose and intent of separating swimming pools from adjacent property is still achieved with the granting of this variance. In 2005/2006, staff recommended (through the text amendment process) reducing the required swimming pool setback to 5 from all property lines. A reduction of the require 15 swimming pool setback could be achieved through a text amendment. Staff finds this criteria for granting a variance is met. STAFF RECOMMENDATION: The applicant is seeking a variance from Article 8.11.6 to allow a swimming pool to be located 10.4 away from a rear property line (4.6 into the require swimming pool setback). Based on the findings of fact staff concludes this request does not meet the four Ordinance requirements for granting a variance and recommends the applicant seek a text amendment to modify the swimming pool setback requirements found in Article 8.11.6. The Chairman called the applicant to testify. Doug Abell, 15607 Knox Hill Road, Huntersville, stated he is the property owner, and noted his appreciation for the time of the Board and staff. From his perspective and given the shape of the lot it is obvious, and if had known about the issue about a year was spent trying to get the impervious stuff correct, and we are happy to answer questions. The contractor was present with Mr. Abell. He rely upon the County and City getting it right, and they have tried to complied, and obviously it would be a hardship if now he had to change things. It sounds like the golf course has no issue where we are at. He is at the mercy of the Board to grant the variance. 6 Page 5 of 9 Brian Lewis, Sunmar Construction, approached the Board and stated that his intent was to always go by the guidelines and do his best not to manipulate or be difficult. He showed the photographs of the house from the rear with a covered porch and to the right a patio that was an impermeable violation. The porch was removed to bring it into compliance. The pool area in violation was shown and he pointed out the 50 square feet in the peninsula part of the pool. If at any point he had known there was an issue he would have stopped work and moved it. A copy of the permit was shown. He noted he has pulled permits before and gone through plan review. When it hits zoning, if a project is in violation, he thought they would stop and say, we are not going to issue this permit. Here, under the site details it shows the setbacks; 15 left side, 15 on the right, and it is highlighted where it does not say anything (rear). His intent is to not to try and beat the system, and wants a full recommendation from Huntersville, and he (they) intended to do what is right. The golf course letter was also referred to. He appreciated the time of the members and the consideration of what happens next. The Chairman called for others to testify in support and opposition. There were none. There was no further testimony, and the Chairman summarized the evidence, and staff s conclusions on the four (4) criteria, to which staff confirmed. The Chairman noted the statement provided by the adjacent property owner (golf course), and that staff determined the existing tree line between the pool and adjacent property, and the purpose of intent was separating the pool and adjacent property was still achieved if the variance was granted. The Chairman requested an understanding from staff on how two of the criteria were not met, but staff still recommended granting the variance, and staff replied that staff does not recommend, but suggested a text amendment. The Chairman clarified that only criteria 4 did staff recommend, which was confirmed by staff, and that by being silent on criteria 1, staff only recommended that the variance met criteria 4. The Chairman asked the applicant if there was anything he would like to clarify, and Mr. Abell noted that no one is harmed by granting the variance. Talking about substantial justice, we thought we were doing the right thing. The Chairman closed the public hearing, and opened discussion for the members, and called for questions. Questions from E. Cecil began with the setbacks for the sides being specific, and the setback for the rear not on the permit. The Mr. Lewis responded that with the blank, and he works all over Charlotte in different zones and counties, that he had not seen an application that does not indicate setbacks, and this was the first time. To Mr. Lewis knowledge, it was not questioned, pointed out, or requested. Mr. Lewis was asked if when submitted to the County if they would have been able to see that it was supposed to be 15 , and if assumed, even though not indicated, there was a rear setback. Mr. Lewis replied, he didn t think so, and this was the first time he has ever seen an application with a blank. It was never pointed out about the setback. E. Cecil continued asking about the drawings, when submitted to the County, if they would have been able look and see that it (the pool) was closer than 15 , and Mr. Lewis noted it was a scaled document. In the past when pulling permits he would be shut down at zoning, right away, if there is something that does not comply
Tagged Passions:trees, property, hearing, compliance, public safety, ordinance, golf, zoning, construction, and grant

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Page 6 of 9

with flood plains, sewer easements, or what-have-you. E. Cecil commented that the County looked at this, and questioned if the County tries to determine it as accurate. Mr. Lewis could not answer that question. Brian Sifford, Zoning Inspector for the Town and Mecklenburg County, commented that when the application came in it did meet the setbacks on the plot plan, but would not have met the 15 otherwise. Mr. Sifford s responsibility is to zone it property with 15 on the sides and rear, and as to the permit that did not print all he could tell was that it was a computer glitch and it did not print the rear setback. On the permit in the system, which is accessible to all contractors, the permits clearly state that it is 15 in the rear. For whatever reason in this case, it did not print. He apologized, and noted he had no control over that. E. Rowell asked Sifford about the Winchester system (screenshot displayed) and who enters the data into the system, and Sifford replied, he is the one that actually enters the setbacks (0 in front, 15 on sides and rear). That is the data that is pulled out of that program and printed. The rear did not populate on the actual permit document. The setbacks have to be assigned every time. It was questioned again about the permit process, and asked that the applicant is actually given a copy of the Building Permit, to which Sifford stated they should be, or it is available to print. J. Bradshaw asked which document serves as the official permit, and Sifford replied this is the official permit in the system (the Winchester system), but what is printed is the Building Permit form, and this permit does not show it has a rear setback. The Building Permit is what is given to the applicant and/or contractor. Mr. Sifford was asked if he checks the scale on the drawings, and he responded that it is looked at, but did not know if it was 100 checked. J. Kluttz asked Mr. Lewis if he knew what the rear setbacks were, and he responded, no. T. Primiano asked Sifford if the Building Permit is the only permit sent out, and Sifford noted it was available online. Meredith Nesbitt commented when submitting digitally for a permit the review and issuing of a permit is all digital, and the applicant and staff has the ability to print a printable version, or look at the permit on the permitting website. There is a nuance about what is the official permit. If it is a digital record, the digital copy would be deemed the permit, but you do have the print out version. The County has notified staff this was a technical issue. If the permit were to be printed today, it would show all setbacks, so it was a glitch and they have not seen this before, and hoped it would not happen again. Staff recommended that this be one of the Board s findings as to what could be the official permit. E. Rowell asked Mr. Lewis how long Sunmar has been in business (12 years), and if he had ever completed any construction projects prior to the property, and Mr. Lewis noted he has been with Sunmar for 3 years, and has completed 6-8 projects in the area. Mr. Lewis is in sales and design with Sunmar. Rowell noted his problem with criteria 3, and further asked Mr. Lewis if he could actually demo a portion of the alcove. Mr. Lewis said it would not be without major problems and leaks. It is not as simple as tearing it out, and explained a new seam in the pool and how it would leak water. Cecil asked what the setback would be if it were a concrete slab, and Mr. Lewis noted they would probably be back in violation of impervious area. Staff responded about impervious calculations and the edge of the water being in the 15 setback. The water is pervious, but outside skirting is impervious. If filled in with concrete it would then be impervious. Staff could not respond to impervious violations, nor not. S. Genenbacher asked about inspections over the past year with all the work

Tagged Passions:Utility, utility, flooding, property, sewer, program, business, zoning, sale, water, easement, and construction

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Page 7 of 9

performed on the property, and staff noted that building inspectors are not zoning inspectors. Zoning is inspected at the time of permit on what is proposed and at the end when a final CO or approved finalized permit. Contractors can call at any time for an inspection, but not required.

No additional detail provided

Tagged Passions:property and zoning

E.
Cecil asked staff about a text amendment as an alternate solution for (pool) setbacks, and staff commented that staff has not discussed or researched setbacks in the area since 2005, and thought it would be between 5 and 10 . The process of a text amendment was given with a three month timeframe. Cecil asked, as a hypothetical, that if the variance was not approved, what was the applicant s timeframe to take care of problem, and staff noted they would want to see compliance. As long as an applicant is working toward compliance, all code enforcement would stop. E. Rowell asked if a text amendment, if approved, would be retroactive to this violation, and staff replied, yes, if the amendment was approved retroactively. He asked Sifford about the November inspection, and Sifford replied, that is when the pool was completed, and further noted that as soon as the homeowner found out, they started working immediately on trying to correct.

No additional detail provided

Tagged Passions:compliance and codes enforcement

Discussion of precedence was made between the members, with Bradshaw noting he was not concerned that the Board was setting a precedence. It was asked about past violations, and Sifford noted there have been violations. David Peete, Principal Planner, commented that of the thousands of permits issued by the County, this is definitely something that doesn t typically happen. Peete noted the time, costs and energy for a text amendment, and explained the public process. Pools, sheds, doghouses, etc., are acceptable accessory uses, and there is a lot to look at in a proposed amendment.

Tagged Passions:energy

E.
Rowell asked Mr. Abell about the letter from the golf course, and if the property line could be moved back. Mr. Abell noted that the golf course did not want to do that, and has no problem with where the pool is. There has been no further communications from the golf course. Mr. Abell stated that clearly there is a disconnect (County), and he is caught in the middle and hoped the Board grants. S. Genenbacher noted the separation of trees and shrubs and the pool is not protruding into the golf course. Staff reiterated what was said in the letter from golf course. The pool is not encroaching, but if splashing and making noise from the pool, could the golf course then say it is a nuisance to the golf play? The Chairman noted the letter is clear in that the golf course has no problem as long as it does not encumber the golf course.

No additional detail provided

Tagged Passions:trees, property, Communications, golf, noise, communications, and grant

T.
Primiano commented about the unfairness of the permit, in that they relied on the Town/County to do their job. The applicant did everything they could do, and it was not their fault. Cecil commented that the contractor has a responsibility, and should logically know there are setbacks. Primiano noted that the contractor is doing several different counties and may be relying on the Town/County to some degree, without prior issue. Cecil thought a preliminary inspection, in the future should be done, and not after completion.

No additional detail provided

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Page 8 of 9

E.
Rowell noted his difficulties with criteria 2 and 3, based on the evidence presented. S. Genenbacher noted that it is based on the information given. Right or wrong a permit was given. There was no inspector to stop work during construction to say there was a violation. T. Primiano commented that they screwed up on this piece of property. Cecil noted they complied with the impervious area, and did not set out to intentionally violate setbacks.

No additional detail provided

Tagged Passions:property and construction

E.
Rowell asked Mr. Abell if the placement of the pool shape had anything to do to come into compliance with the impervious. Mr. Abell stated they were stuck with putting the pool where it is given the property lines. The old deck was removed, and he noted the patio to the right. There is a roof portion that was also removed. They needed to comply with the HOA rules too. Functionally, if the pool was moved there would not be enough space to walk (he showed an area near the house). Mr. Lewis noted that the fence is not on the property line, as the golf course requires it be 5 in from the line. There is 10.7 to the water s edge.

The Chairman discussed issuing permits for his job, and has never looked at a permit without a rear setback. He had visited the site several times. Based on what the applicant and contractor did to get to this point, and noted the intent was not to create a violation. The circumstances are unique and is specific to the property. It would be hard to believe there is no rear setback though, and Mr. Lewis noted it was not his intent to do anything wrong.

Tagged Passions:Utility, utility, property, compliance, golf, and water

The Chairman called for a Motion (see above).

No additional detail provided

Discussion after the Motion: E. Cecil felt contractors needed to be more careful in the future. The Chairman noted that there are lessons to be learned both by the constructor and the County. It is really bad to find this at the end of a project. Pre-construction meetings may be helpful. The homeowner has a beautiful pool and does not need to tear any of it out.

The hearing was closed.
Tagged Passions:hearing and construction

D.
Other Business D.1. A) The Chairman asked if there were any other business prior to Elections that a

member would like to discuss. E. Cecil was recognized, and stated there are two people that work very hard; Bob Blythe and Michelle Haines. He thought all should respect and understand what they go through in an effort to do for the Town what has to be done. He hoped in the future that would be done, and took exception to any derogatory comments that have been, or may be made. He hoped that any member would appreciate their hard work, as he does, and he takes affront to what has been said. E. Rowell asked if there had been something specific, and E. Cecil commented there are those that know what he is saying, and noted he wanted to compliment them.

Tagged Passions:recognition, voting, business, and election

B) E. Rowell commented about an email he had sent out to the members to discuss revising the Rules of Procedures, and noted that as for now the By-Laws 10

Page 9 of 9 did not need to be revised. At the last hearing, there was a large number of people, and he saw discussion on social media (wasn t sure if it was before or after the hearing). The Rules, Section 3.D Discussion of Board Cases, prompted him to think of revising the Rules for social media, but for now, as a good reminder, if having controversial cases come up, that members refrain from discussing upcoming matters of business, including on social media. He did not want the members to prejudice themselves, or have to recuse someone. The Chairman asked staff about any rules of the Town that apply to social media. David Peete noted no policies, but ex parte communicate is broad. The Chairman further noted that social media is not the place to have these types of discussions prior to, or after a case has been ruled upon. C) Elections for Chairman and Vice Chairman Toniann Primiano nominated Eric Rowell for Chairman, and was seconded by S. Genenbacher. Dennis Brewer nominated Bethany Welch for Chairman, and was seconded by E. Cecil. There were no other nominations. The vote for Rowell received two votes, and the vote for Welch received 7 votes. Chairman: Bethany Welch The nomination for Joe Kluttz for Vice Chairman was declined to give another member a leadership opportunity. Toniann Primiano nominated Eric Rowell for Vice Chairman, and was seconded by Wil Smith. There were no other nominations, and the vote was unanimous. Vice Chairman: Eric Rowell

Tagged Passions:alcohol, hearing, social media law, voting, business, procedure, and election

E.
Adjourn

No additional detail provided

11
1 Town of Huntersville Board of Adjustment

To: Board of Adjustment

From: Meredith Nesbitt, Planning

Date: 6/12/18
Tagged Passions:planning

Subject: V18-03: 7411 Capri Drive

EXPLAIN REQUEST: V18-03: The applicant, Regina Martin, is requesting a variance from Article 3.2.3.d.3 for a 4 variance from the required 50 rear yard setback.

ACTION RECOMMENDED: Hold a Public Hearing and make a decision on the variance request.

FINANCIAL IMPLICATIONS: None

Tagged Passions:hearing and finance

ATTACHMENTS: V18-03 7411 Capri Drive_Staff Report.pdf

Exhibit 1 Variance Application.pdf Exhibit 2 Site Photos.pdf Exhibit 3 Adjacent Property Well House.pdf Exhibit 4 Norman Woods Subdivision Plat.pdf Exhibit 5 Email from Mecklenburg County Environmental Health.pdf
Tagged Passions:subdivision, health, property, zoning, and environment

12
Board of Adjustment Public Hearing Staff Report

V 18-03 7411 Capri Drive Case : V18-03

Tagged Passions:hearing

Address: 7411 Capri Drive, Huntersville NC, 28078

Parcel : 015-183-14
Tagged Passions:property

Acreage: +/- 0.343 acres

Property Owner/Applicant: Regina Martin Staff: Meredith Nesbitt Senior Planner The applicant, Regina Martin, is requesting a variance from Article 3.2.3.d.3 (see text below) for a 4 variance from the required 50 rear yard setback. See Exhibit 1 for the variance application. The applicant seeks to construct a detached single-family home on the currently vacant lot. See Exhibit 2 for aerial and site photographs. Article 3.2.3.d.3

Tagged Passions:property and blight

3) In the absence of a subdivision sketch or preliminary plan approved prior to the effective date of this ordinance, the following lot dimensions shall apply:

Minimum Lot Size Minimum Lot Width Minimum Front Yard Minimum Rear Yard Minimum Side Yards Minimum Corner Lot Side Yard 20,000 90 40 50 10 20
Tagged Passions:subdivision and ordinance

13
Board of Adjustment Public Hearing Staff Report

Page 2 of 5 BACKGROUND:

Tagged Passions:hearing

1.
The +/-0.343 acre subject property is located at 7411 Capri Drive in the Norman Woods subdivision. The subject

property is zoned General Residential (GR) and is in the Mountain Island Lake Watershed Overlay Protected Area
Tagged Passions:subdivision, property, watershed, and zoning

1
(MIL PA-1) District.

2.
On April 17, 2017, Regina Martin visited the Planning Department seeking guidance on the zoning approval for a building permit to construct a single-family home on her property.

No additional detail provided

Tagged Passions:property, zoning, and planning

3.
The Zoning Ordinance (Article 3.2.3.d.3) establishes the following setbacks that apply to the subject property: Minimum Front: 40 Minimum Rear: 50 Minimum Side: 10

No additional detail provided

Tagged Passions:property, ordinance, and zoning

4.
To prepare for seeking permit approval the applicant has already been in contact with Mecklenburg County Environmental Health for permitting well and septic on the subject property. The applicant has also had a survey

No additional detail provided

Tagged Passions:health, property, and environment

completed showing the proposed location of the home. See Exhibit 1.

5.
Mecklenburg County Environmental Health requires maintaining a maximum feasible separation between well and septic locations with no less than 50 separation.

6. The location of the adjacent property owner s (to the rear of the subject property) existing well is effect the location of a septic tank on the subject property. See Exhibit 3.

Tagged Passions:health, property, and environment

Findings of Fact with Staff s Conclusions (ordinance standards are in italics):

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Please see Exhibit 1 for the applicant s responses to the required criteria for granting a variance.

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In considering any variance request, the following Standards for Granting a Variance (Article 11.3.2.e) must be addressed

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with findings of fact:

Standards for Granting a Variance. When unnecessary hardships would result from carrying out the strict letter

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of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing

of all of the following: 1) Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. Staff Findings:

Tagged Passions:property, ordinance, and zoning

A.
The strict application of the ordinance (Article 3.2.3.d.3) requires a 50 rear yard setback. B. Mecklenburg County Environmental Health staff approved the location for septic on the subject property

on March 26, 2018 with the conditions that the house must be located 76 off the front property line to accommodate well and septic sites. See page 6 of Exhibit 1. Staff Conclusion: The strict application of the ordinance would not allow staff to approve the building permit request unless the proposed house met the required GR setbacks. Due to the location of the existing well on the
Tagged Passions:health, property, ordinance, sites, and environment

adjacent property the applicant cannot accommodate septic in any other location on the subject property.

Denying a building permit because the proposed home encroaches 4 into the required rear yard setback due to location of well and septic creates an unnecessary hardship.
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Staff finds this criteria for granting a variance is met.

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2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography.

Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are
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common to the neighborhood or the general public, may not be the basis for granting a variance.

Staff Findings: A. All property located in the Town of Huntersville zoned GR must comply with Article 3.2.3.d.3, unless setbacks are established on an approved plan or recorded plat. 14
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Board of Adjustment Public Hearing Staff Report

Page 3 of 5 B. The subject property was subdivided in 1961. No approved subdivision plan exists in Town or County records and the recorded subdivision plat does not established setbacks. See Exhibit 4. C. Location of the adjacent property owners well and pump house are unique to the subject property and limit the placement of a septic tank and repair field, which also limits the location of the proposed single-family home. Staff Conclusion: The required GR rear yard setback is not peculiar to this property. However, the location of the adjacent
Tagged Passions:subdivision, property, hearing, and zoning

well restricts the placement of septic on the subject property, which creates a condition that is peculiar to

the subject property.
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Staff finds this criteria for granting a variance is met.

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3) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing

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property with knowledge that circumstances exist that may justify the granting of a variance shall not be

regarded as a self-created hardship. Staff Findings:

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A.
The applicant has not taken action that caused the hardship. B. Mecklenburg County Staff confirmed that State Law requires a minimum 50 separation between well

and septic sites but the requirement also states to maintain maximum feasible separation. See Exhibit 5.

Staff Conclusion:

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Staff finds the applicant did not take any action that resulted in the creation of the hardship.

Staff finds this criteria for granting a variance is met.

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4) The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public

safety is secured, and substantial justice is achieved. Staff Findings: A. The intent of the GR zoning district is to permit the completion and conformity of conventional residential subdivisions already existing or approved in sketch plan form by the Huntersville Board of Commissioners prior to the effective date of these regulations or by the Charlotte-Mecklenburg Planning
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Commission under the prior jurisdiction of Mecklenburg County. The application of the General

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Residential District is not intended for development projects in the Huntersville jurisdiction which are

No additional detail provided

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initiated after the effective date of this ordinance (November 19, 1996). B. The applicant is proposing to construct the single-family home as close to the required setbacks as

possible.
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C.
The single-family home located on the adjacent property (to the rear of the subject property) is located approximately 78 off the rear property line.

Staff Conclusion of Findings: It is staff s opinion that the location of the existing single-family home to the rear of the subject property (being 78 off the property line) in proximately to the proposed single-family home (being 46.4 off the property line) still accommodates appropriate separation. Therefore, staff concludes the variance is
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consistent with the spirit and intent of the Ordinance. Staff also concludes public safety in not adversely

affected by granting this variance.

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Staff finds this criteria for granting a variance is met.

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Board of Adjustment Public Hearing Staff Report

Page 4 of 5 STAFF RECOMMENDATION: The applicant is seeking a variance from Article 3.2.3.d.3 for a 4 variance from the required 50 rear yard setback to construct a new detached single-family home. Based on the findings of fact staff concludes this request meets the four Ordinance requirements for granting a variance and recommends approval of this variance request. ATTACHMENTS: Exhibit 1 Variance Application Exhibit 2 Site Photos Exhibit 3 Adjacent Property Well House Exhibit 4 Norman Woods Subdivision Plat Exhibit 5 Email from Mecklenburg County Environmental Health

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Board of Adjustment Public Hearing Staff Report

Page 5 of 5 EXAMPLE MOTION: V18-03, 7411 CAPRI DRIVE Planning Department Board of Adjustment APPROVAL: In considering the findings of fact for V18-03, a

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request by Regina Martin for a variance from Article 3.2.3.d.3,

the Planning Department recommends approval of the variance request based on a finding that the request based on a finding that the request meets all four criteria, outline in the zoning ordinance, for granting a variance.
Tagged Passions:ordinance, zoning, planning, and grant

The Planning Department finds the request meets the four

criteria for granting a variance based on the following findings of fact:

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1.
The strict application of the ordinance causes staff to have to deny the build permit application showing the

proposed single family home encroaching into the rear yard setback. 2. The location of the adjacent property owner s well and pump house effects the location of septic on the subject property.
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3.
State Law required a minimum 50 separation between well and septic locations.

No additional detail provided

4.
The applicant has not taken action that caused the hardship

5.
The applicant is proposing to adhere to the GR required setbacks as much as possible.

6. Public safety is not adversity affected by granting the 4 variance from the 50 rear yard setback. 7. The location of the adjacent single-family house is approximately 78 off the rear property line. APPROVAL: In considering the findings of fact for V18-03, a
Tagged Passions:property, public safety, and grant

request by Regina Martin for a variance from Article 3.2.3.d.3,

the Board of Adjustment grants approval of the variance request based on a finding that the request meets all four criteria, outline in the zoning ordinance, for granting a variance. The Board of Adjustment finds the request meets the four criteria for granting a variance based on the following findings
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of fact: (explain findings of fact)

DENIAL: In considering the findings of fact for V18-03, a

request by Regina Martin for a variance from Article 3.2.3.d.3,

the Board of Adjustment denies the variance request based on a

finding that the request does not meet criteria (name the

criteria the Board finds is not met) for granting a variance. The Board of Adjustment finds the request does not met the criteria for granting a variance based on the following findings
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of fact: (explain findings of fact)

17
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mmiller Text Box Exhibit 1 Variance Application Page 1 of 8

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mmiller Text Box Page 2 of 8

No additional detail provided

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mmiller Text Box Page 3 of 8

No additional detail provided

From: Regina Martin To: Meredith Nesbitt Subject: Regina Martin Variance Application Date: Monday, April 30, 2018 12:10:44 AM

To The Board Of Adjustment: My name is Regina Martin, im writing you on the behalf of a zone variance. Im asking the board to consider allowing me to rezone the property of 7411 Capri Dr. by 4 feet. It has been brought to my attention that the home I want to build has an encroachment of 3.6x76' of the present zone allotment. The reason for the measurement is because, my neighbor's well is in the rear near the zone where the septic tank should be placed. Which then cause the environmental specialist to place the septic in the front of the home.(Jeremy Michelone) he stated to me via text that this was the only place my home could go on the property. The home is 50 feet from the property line in the front, which has developed the encroachment in the rear. I have reach out to Mr Michelone to ask him to also write a statement on this matter explaining in his words, his permit diagram. In which I have enclosed a copy. Eric Clemmer is the survey manager who has sent an email of the measurement as well. I have also enclosed a copy of that email, along with the site plan. I have already paid to have the land cleared and order my home before knowing these problems with the measurements. My land has been cleared and my well has a deposit on it. I want to apologize for this matter, and ask that you would grant me the variance of 4 feet to continue to build my home. Thank you for your time. Sincerely, Regina Martin

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Sent from Yahoo Mail on Android

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mmiller Text Box Page 4 of 8

No additional detail provided

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mmiller Text Box Page 5 of 8

No additional detail provided

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mmiller Text Box Page 6 of 8

No additional detail provided

From: Michelone, Jeremy To: Kevin Capps; Meredith Nesbitt; Eric Clemmer Cc: martinregina46@yahoo.com Subject: RE: [External]Health Permit Site Plan, Survey to Match Site Plan Per Health Inspector Date: Tuesday, May 01, 2018 5:13:39 PM Attachments: image001.png

Good afternoon. As Kevin has mentioned, the septic system must be located in the front yard. There is a well on the neighboring property to the rear of this property which is why the proposed septic system must go in the front yard. Please feel free to email me or call me on my cell at (704)201-7414 with any questions. Thank You, Jeremy Michelone From: Kevin Capps [mailto:kevinc@ncmodulars.com] Sent: Tuesday, May 01, 2018 4:18 PM To: Meredith Nesbitt ; Michelone, Jeremy ; Eric Clemmer Cc: martinregina46@yahoo.com Subject: [External]Health Permit Site Plan, Survey to Match Site Plan Per Health Inspector

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CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hello MeredithJ Regina asked I forward these over to you for her Variance Request ? You will Also see the email below from Jeremy with Mecklenburg Environmental mentioning that the home must be placed according to site drawing due to the Septic having to be placed in the front yard to meet County Setbacks which puts her 3.6 4 short to meet Huntersville s Required setbacks. This puts Ms. Martin in Hardship with Homes By Vanderbuilt as we have already issued payments for Survey s, Clearing and Grading of the Property, Perk Test etc that would have to be paid back? Her Home was released into production and then pulled until this matter was resolved for Ms. Martin. I think Ms. Martin has done very well keeping all parties involved with this matter and has not cut any corners on trying to achieve her new Home. Best Regards, Kevin Capps Sales Associate Homes by VanderBuilt 1-919-353-2663 cell 1-800-537-2448
Tagged Passions:property, recognition, grading, sale, and environment

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mmiller Text Box Page 7 of 8

No additional detail provided

From: Michelone, Jeremy [mailto:Jeremy.Michelone@mecklenburgcountync.gov] Sent: Monday, April 09, 2018 11:48 AM To: Kevin Capps Subject: FW: Scan-to-Me

No additional detail provided

Here is the new permit drawing. The house must be located exactly as I have drawn or it just will not fit otherwise.

Thank You, Jeremy Michelone (704)201-7414

From: Jeremy.Michelone@mecklenburgcountync.gov [mailto:Jeremy.Michelone@mecklenburgcountync.gov] Sent: Monday, April 09, 2018 11:45 AM To: Michelone, Jeremy Subject: Scan-to-Me

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mmiller Text Box Page 8 of 8

Exhibit 2 Site Pictures

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Exhibit 2 Site Pictures

No additional detail provided

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Exhibit 3 Adjacent Property Well House

No additional detail provided

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Red Circle Indicates Adjacent Property Owners Well and Pump House Blue Star Indicates Subject Property

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mmiller Text Box Exhibit 4 Norman Woods Subdivision Plat

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From: Michelone, Jeremy To: Meredith Nesbitt Subject: Re: [External]Health Permit Site Plan, Survey to Match Site Plan Per Health Inspector Date: Friday, May 25, 2018 10:17:49 AM Attachments: image001.png

image001.png Yes that is the State law. The rule states to maintain the maximum feasible distance, but no less than 50'. We are always trying to shoot for 100'.
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Sent from my iPhone

On May 25, 2018, at 9:53 AM, Meredith Nesbitt wrote:

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Jeremy,
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I
am working on the staff report for this variance request. Does the County (or State) require a specific distance between well and septic tanks? For some reason I believe the regulations is 100 required separation but I m not sure if that is something I ve heard or is the actual requirement.

I want to point to the specific requirement in our report. Thank you Best regards, Meredith M. Nesbitt, MSc. Urban Planning Senior Planner Town of Huntersville Office: (704)766-2298 mnesbitt@huntersville.org
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From: Michelone, Jeremy [mailto:Jeremy.Michelone@mecklenburgcountync.gov] Sent: Tuesday, May 01, 2018 5:14 PM To: Kevin Capps ; Meredith Nesbitt ; Eric Clemmer Cc: martinregina46@yahoo.com Subject: RE: [External]Health Permit Site Plan, Survey to Match Site Plan Per Health Inspector

Good afternoon. As Kevin has mentioned, the septic system must be located in the 30 mmiller Text Box mmiller Text Box Exhibit 5 Email from Mecklenburg County Environmental Health

Tagged Passions:health and environment

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