MINUTES
BOARD OF ADJUSTMENT
City of Burlington, NC
June 14, 2005
Members Present Members Absent
City: City:
Mr. H.E. (Ed) Wilson, III, Chairman Ms. Charlotte Straney
Mr. Mike Gee, Vice
Chairman Mr. Todd Smith
Mrs. Mary Watson
Mrs. Margaret Stephens
Mrs. Joyce Lance
Also present was Mr.
Joey Lea, Code Enforcement Officer for the City of Burlington.
Mr. Ed Wilson,
Chairman, called the meeting of the Board of Adjustment to order at 8:35 a.m. He
explained that the city representatives to the Board of Adjustment are
appointed by the City Council and the representatives of the Extraterritorial
jurisdiction were appointed by the County Commissioners. This is a quasi-judicial hearing. Everyone speaking before the Board should
state their name, sign the log on the podium, and swear or affirm that
everything they say is true to the best of their knowledge. Appeals of the Board’s decisions may be
taken to the Alamance County Superior Court.
The City will state their position because of their knowledge of the
case and the technical codes. The
applicant will state their case, and then anyone from the public may
speak. The Board will then close the
meeting to the public and discuss the case and vote. An affirmative four-fifths vote is required in order to grant a
variance, a special use permit, or an appeal.
DUE PUBLICATION
Mr. Joey Lea, Code Enforcement Officer with the City of
Burlington, advised that due notice and publication of this meeting of the
Board of Adjustment and matters to come before it had been made, and all
contiguous property owners were mailed a notice advising of this meeting.
Prior to testifying
before the Board, each party was sworn in or affirmed that the testimony they
were about to give was true to the best of their knowledge.
MINUTES
Chairman Wilson asked if there were any changes to the
minutes from the May 10, 2005 meeting.
There being no changes Mary Watson made a motion to approve the
minutes. Mike Gee seconded the
motion. There being
no discussion, the motion passed unanimously.
CASE HEARD
CASE NO. 12-05
VARIANCE: SECTION 32.3.E (5) -
ZONING ORDINANCE (FRONT SETBACK IN R-9 DISTRICT) (Michael N.
Herron (President, Herron Construction), 1815 Margaret Lane, Burlington, NC)
EVIDENCE PRESENTED:
Mr. Joey Lea explained that
Mr. Herron is constructing a new single-family dwelling at 1815 Margaret Lane.
After he started the construction of the home it was discovered that the
foundation was too close to the front property line. It is in an R-9
Residential District that requires a 30-foot setback. Mr. Lea stated that Mr. Herron has a survey showing the exact
dimensions of the house and he is applying for an approximate 5-foot variance
to the 30-foot front setback. During construction the footing was passed by the
City’s Inspection Department and at that time the setbacks were also checked so
he did get approval from the City. The City takes part of responsibility for the setback problem.
Mr. Michael Herron explained
that he staked the house off and had to stay toward the front because there is
a natural swell that runs from the back of the property and goes along the
right to the front of the property. The house that is to the right is setback
very far on the property and the property to the left is set closer to the road
from where this house is located. The
swell goes to the property on the right, cuts in front and goes toward the
middle of his property. Mr. Herron said
that he pulled the setbacks and thought they were right. The City even checked
them, the footings were poured an passed inspection. Mr. Gee asked how far from
the road the house is actually going to be?
Mr. Herron said that at the front the offset would be 45-foot and the
main body of the house would be approximately 50-foot. Mrs. Watson asked if the house has a stoop?
Mr. Herron stated that it had a little offset from the Master Bedroom side that
protruded out. The restrictions on the right side of the house are within the
R-9 code. The left and back are also in. Mr. Gee asked if there was a copy of
the survey? Mr. Herron gave a copy of the survey to include in the record. Mr. Herron said that the offset would be 14
feet and with the porch about 16 feet. It is square with the road not angled.
Mr. Herron stated that he has built maybe 25 or 30 houses in this area and
going into this area I took a big chance because it wasn’t the most desirable
part of town and I had to clean TV sets, tires and other items that people
dumped on the lots. The neighborhood has grown and there are probably only two
lots left out there. They are good quality homes. Mr. Herron stated that he spoke to all the people at the
perimeters of the property and they don’t have any problems with this. Mrs.
Watson asked if the neighbor that was far back had questioned this house being
so far forward? Mr. Herron stated that they knew the situation when he sold him
the property. The swell that is in the front of the property is the reason why
it’s so far back. Mr. Lea stated that
the intent of the Ordinance is to keep the houses as much in line as possible
when you come closer to the road. The Ordinance allows a house to go as far
back as you want it to go as long as it’s 25-feet from the rear property line.
It wouldn’t make any difference if it was 5-feet off or 10-feet off even if he
had to adhered to the 30-foot setback he’d still be way in front of the house.
Normally in an existing subdivision your allowed to take the average of the
existing houses on your side of the street within the block in order to establish
a setback. Unfortunately with Mr. Herron that did not work out to his favor
because there was only one house that he could use and it was the one that was
sitting back so far. Mrs. Stephens stated that the location of Mr. Herron’s
house is not out of line with the corner house and visually it is not sticking
out like a sore thumb. Mr. Lea stated
that’s why technically the intent of the ordinance is still intact as far as
the City is concerned.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Chairman Wilson turned the meeting over to the Board for
discussion. Mr. Gee stated that the
hardship is that Mr. Herron proceeded in good faith and he did not create the
problem. Once he uncovered the problem he actually reported it to the City. If
he had known that the footing did not pass inspection he probably could’ve
taken corrective action at that point and it is in harmony with the intent of
the Ordinance according to testimony by Mr. Lea. Even though it is 5-foot
closer to the property line than the Ordinance allows it’s still 45 feet from
the road. The public welfare and safety
are assured and no adjoining property owners have any objection to the variance
as stated by Mr. Herron, however, if we do grant the variance it needs to be
specified that it is to match the footprint in the existing survey that was
submitted to the Board. Mrs. Lance
stated that she also agrees that in granting the variance that substantial
justice has been done based upon statements made by Mr. Herron and Mr. Gee and
that Mr. Herron came forward in good faith and he also contacted the City, so
by granting this variance we are showing substantial justice.
DECISION:
Mr. Mike Gee made a motion to grant a 5-foot variance to
the front setback with a condition being restricted to the footprint as
presented in the survey provided by Mr. Herron for his property located at 1815
Margaret Lane with the Findings of Fact being there are practical difficulties
or unnecessary hardships in way of carrying out the strict letter of the
Ordinance and that the hardship being that Mr. Herron operated with the
assumption that the property was being developed in accordance to the code
because at the inspection of the foundation the City did pass the inspection and
once he re-evaluated the situation he determined that it was encroaching upon
the front setback and brought that to the City’s attention. The variance is in
harmony with the general purpose and intent of the Ordinance as stated by Mr.
Lea that Mr. Herron is trying to comply with as much of the intent with the
Ordinance as possible and in granting a variance, substantial justice has been served because of the manner that
Mr. Herron proceeded with the case.
Mrs. Joyce Lance seconded the motion.
The Board voted unanimously to approve the Variance.
(AYES: Wilson, Gee, Watson,
Lance, Stephens)
(NOES: none)
CASE HEARD
CASE NO. 13-05
VARIANCE: SECTION 32.4.A (12)
& 32.3.F (5) - ZONING ORDINANCE (Uses in Multi-family and Side
setbacks in R-6 District) (Jonathan Blake,
1443 East Maple Avenue, Burlington, NC)
EVIDENCE PRESENTED:
Mr. Joey Lea explained that Mr. Jonathan Blake was in the
process of constructing a single-family dwelling at 1443 East Maple Avenue.
After the foundation was put in, the surveyor had it laid out on the property
closer than the side yard requirement of 10 feet. The applicant has the exact
dimensions of the setback and is seeking variance to the setback
requirements. Mr. Lea said that he did
speak with the property owner to the left of this property and they did not
have a problem with this variance. Mr. Jonathan Blake explained that his
surveyor made the mistake of staking off the house on the right corner of the
house and there is a 5 foot 4 inch setback and the City requires 10 feet. The
back right corner is well within 10 feet.
It is an odd shaped lot and the property line goes at an angle and that
is what created the problem. The next door neighbor is less than 2 feet off of
the property line so from the street it looks appropriate as far as the
distance between the 2 houses. The footing is in and the brick foundation is
in, so it would be impractical to tear it out and start over. Chairman Wilson asked if the closest point
of the front corner is 5 foot 4 inches from the line? Mr. Blake stated that is
right and the back right corner is between 10 and 11 feet from the line. Mr. Lea stated that the North Carolina State
Building Code allows two structures on two separate properties for
single-family dwellings to be as close as 6-feet apart which will allow a 3
foot side yard, so he is well beyond the State Building Code requirement. Also,
the Ordinance will allow part of the structure that is uncovered such as a
porch or deck to extend 4 feet into a side yard. As far as separation
requirements of the City and the State Building Code he is well within that
which is for fire and public safety.
Mrs. Stephens asked what the property was zoned? Mr. Lea stated that the
property is zoned MF-A Multi-family and single-family dwellings adheres to R-6
requirements. Chairman Wilson stated
that it is within the intent of the Ordinance as required by separation and
exceeds the North Carolina State Building Code requirements. Chairman Wilson asked
if he was applying for a 4 foot 8 inch variance? Mr. Lea stated that is
correct. Mrs. Lance asked if the City
approved this? Mr. Lea stated that the footing was approved upon
inspection. Mr. Lea explained that
during the process of construction you have to get approval of the footing to build
your foundation and he already has that in.
Mr. Gee asked if Mr. Blake had a copy of the survey? Mr. Blake stated he
did not have a copy of the survey.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Chairman Wilson turned the meeting over to the Board for
discussion. Mr. Gee stated that the
hardship was created based on approval of the footing and survey and that the
builder acted in good faith and testimony from Mr. Lea states that the variance
is in harmony with the intent of the Ordinance and in regard to separation is
well within the State requirements and the public welfare and safety will not
be damaged if this variance is granted.
Mrs. Lance said that even though we don’t have a copy of the survey Mr.
Blake and Mr. Lea have testified to it’s contents and that’s under oath. Mr. Gee stated that if we approve the
variance it should be restricted to the
footprint of the existing survey.
DECISION:
Mrs. Joyce Lance made a motion to grant a 4 foot 8 inch
variance to Mr. Blake to complete the construction of his home based on the
Findings of Fact that he has experienced practical difficulties or unnecessary
hardships and had City approval for the footing and proceeded with the
understanding that he had met the requirements. The variance is in harmony and
general purpose of the intent of the Ordinance and preserves it’s spirit as
shown in the drawing that he presented of the neighbors homes on either side.
In granting the variance the public safety and welfare have been assured and
substantial justice has been served and substantial justice needs to occur here
due to a problem through no fault of his own.
Mrs. Lance stated that this variance is based upon the exact footprint
of the construction at this point and no further alterations be made to
it.
Mary Watson seconded
the motion.
The Board voted unanimously to approve the Variance.
(AYES: Wilson, Gee, Watson, Lance, Stephens)
(NOES: none)
CASE HEARD
CASE NO. 14-05 VARIANCE: SECTION 32.3.C (4) ZONING ORDINANCE (Front
setback in R-15 District) (Thomas & Gade Lander, 2911
Bedford Street, Burlington, NC)
EVIDENCE PRESENTED:
Mr. Joey Lea explained that
Mr. & Mrs. Lander of 2911 Bedford Street were in the process of covering
their front porch. The contractor came in and discussed it with me and
discovered that the porch itself was closer to the property line than the
setback requirement. This is in an R-15 Residential District which requires a
40-foot setback. Setbacks are measured to the most covered portion of the
house. There can be a house sitting 40-feet from the property and a porch or
terrace that is uncovered can encroach as much as 10 feet into that required
front yard. However, if you cover the porch you have to measure to the
foundation of the covered portion. Mr.
Lea stated that they were approximately 2 feet too close to the front property.
Chairman Wilson asked if the covering of the porch is what created the problem
with the setback? Mr. Lea stated that
the foundation of the house can sit right on a setback line which is 40 feet
and an uncovered porch can come within 10 feet into the required front yard,
but when you cover it the covered portion has to adhere to the setback for the
district and that is what has caused the problem. Mr. Lea stated the other options were for them to not cover it,
cover all but 2 feet, or seek the variance.
Mrs. Lance stated that if they had an uncovered porch a 30-foot setback
would be appropriate. Mr. Lea stated that the setback would be measured to the
foundation of the house and not the porch. This house is in somewhat of a curve
and other houses do have covered porches and it appears that the intent of the
Ordinance is being met. Mr. Thomas Lander provided the Board with pictures
including the corner lot and explained that they began the project assuming
they were going to be in compliance with the City regulations but when working
with their builder they started looking at the setbacks and realized they would
be in violation by 2 feet. They started in good faith, ordered the materials
and began construction but upon learning they would be in possible violation
they shut down their construction for the past 3 weeks. The property is unique in the sense that
there are two houses in between two corner lots, and that the lot to the west
has the covered porch and covered stoop which is closer to the property line
than we will be if granted permission to continue with construction. The front
door takes a beating from the sun and there’s the cracked door which is going
to be replaced and covering the porch will alleviate that problem. The intent is not to be a detriment to the
neighbors and hopefully will be staying within the intent of the original
Ordinance but the existing stoop puts the project over the line for the
setbacks. Mr. Lea said that he did
speak with the adjoining property owners and they did not have any problems
with this project.
DISCUSSION & FINDINGS OF FACT: There being no further comments from the
public, Chairman Wilson turned the meeting over to the Board for
discussion. Mrs. Lance stated that when
you line two of the pictures up it answers all the questions and is convinced
it is ok. The other Board Members agree.
DECISION:
Mrs. Joyce Lance made a motion that Mr. & Mrs. Lander
receive a 2-foot variance for their property at 2911 Bedford Street so they can
complete the project of covering their existing front porch. There are
practical difficulties and unnecessary hardships in the way of carrying out the
strict letter of the Ordinance in that the Ordinance was changed when the house
was constructed. The variance is in harmony with the general purpose and intent
of the Ordinance and preserves it’s spirit, the Landers have submitted photographs that are apart of their record
that clearly show that the variance is in harmony with the general purpose and
definitely preserves the spirit of the neighborhood. Also, granting the
variance assures the public welfare and safety and that substantial justice has
been done. Mrs. Lance stated that Mr.
Lander noted they will be adding railing to the porch which will improve
safety. The hardship is that the Ordinance changed after the home was built and
the neighboring homes have covered porches based upon when they were erected
versus today.
Margaret Stephens seconded the motion.
The Board voted unanimously to approve the Variance.
(AYES: Wilson, Gee, Watson, Lance, Stephens)
(NOES: none)
MEETING ADJOURNED: 9:15 am
___________________________________
Ed
Wilson, Chairman
___________________________________
Mary
Fanelli, Secretary