Raleigh Board of Adjustment Minutes - 08/08/2016

RALEIGH BOARD OF ADJUSTMENT MINUTES

The Raleigh Board of Adjustment met in regular session on Monday, August 8, 2016, at 1:00 p.m. in the City Council Chamber, Room 201 of the Raleigh Municipal Building, Avery C. Upchurch Government Complex, 222 W. Hargett Street, Raleigh, North Carolina with the following present:

Board Staff

J. Carr McLamb, Chairman (City) John Silverstein, Attorney to the Board Karen Kemerait, Vice Chair (City) Assistant Planning Director Travis Crane Eugene Conti, Secretary (City) Planning Administrator Eric Hodge Donald Mial (County) Assistant Deputy Clerk Ralph Puccini Neil Riemann (City Alternate) Judson Root (City Alternate)

Absent

Brian Williams (City)

These are summary minutes unless otherwise indicated:

Chairman McLamb called the meeting to order, and introduced members of the Board and staff present.

Chairman McLamb read the rules of procedure for today’s meeting, and swore in Assistant Planning Director Travis Crane and Planning Administrator Eric Hodge, who used a PowerPoint presentation in giving testimony.

The following applications were heard with actions taken as shown:

A-90-16 and A-91-16 – 8/8/16

Decision: Approved as requested.

WHEREAS, Rufty Homes Inc., property owner, requests variances for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2 of the Unified Development Ordinance to allow for the recombination of six lots into three lots and the subsequent construction of a detached house and any accessory structures/impervious surfaces on each of the recombined lots that range in size from .57 to .64 acres and are zoned Residential- 4 and located at 2625 and 2631 Churchill Road. Raleigh Board of Adjustment August 8, 2016

Planning Administrator Eric Hodge (sworn) explained the request noting that, historically, there has been a detached house on each of the subject lots; however, the properties were divided into 6 separate lots. He stated TC-6-15 was intended to address stormwater runoff controls for residential lots larger than 1 acre; however, at the time of adoption the language included smaller lots. He talked about a proposed text change currently under discussion in the Planning Commission to address this issue noting that under the previous Part 10 zoning code stormwater installations for lots less than 1 acre were not necessary. He pointed out this application is the 40th such case to appear before the Board this year and indicated the City Council acknowledges the issue exists. He stated staff is not opposed to the request.

Mr. Silverstein questioned whether the existing dwellings were demolished with Mr. Hodge responding not at this time.

Applicant

Attorney Michael Birch, Morningstar Law Group, 1330 St. Mary’s Street, Suite 460, representing the Applicant (sworn), confirmed Mr. Hodge’s testimony and indicated the subject lots will be recombined from 6 lots into 3. He stated the lots will conform to Residential-4 standards and will be in keeping with other lots in the neighborhood. He stated his client also took care to repair existing stormwater runoff devices. He went on to assert the subject property would have been exempt from stormwater runoff regulations prior to the adoption of TC-6-15.

Opposition

Requests for Notification

Findings of Fact

1. Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct 3 new homes. These cases are consolidated for hearing because the Applicant and issues are the same for 3 adjacent properties. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §9.2.2, Applicant would have to provide active stormwater control measures to the lots because the two existing homes are to be demolished, and TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of less than 1 acre. These three lots range in size from .57 to .64 acres.

2 Raleigh Board of Adjustment August 8, 2016

6. Applicant’s recombination reconfigures six nonconforming lots into three conforming lots in this R-4 zoning district. The two existing structures are built crossing interior lot lines. 7. Even though the recombination would remove “ghost” property lines and render the three lots conforming, it would also trigger the stormwater control requirements specified in TC-6-15 because the existing structures would be removed. 8. The new lots would have been exempt from stormwater controls prior to TC-6-15, and a proposed ordinance, TC-2-16, will restore the exemption. 9. Since the number of lots will be reduced, the new structures will meet all setback requirements in the zoning district. 10. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 11. The character of surrounding properties would not be adversely affected by the granting of the variance. 12. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 13. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property. 3. The hardship did not result from actions taken by the Applicant or the property owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved. 5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.

Motion

Chairman McLamb moved to approve the variance as requested. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Riemann); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.

****************************************************************************** A-89-16 – 8/8/16

WHEREAS, NorthStar Capital Group, LLC, property owner, requests a variance for complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2 of the Unified Development Ordinance to allow for the construction of two detached houses and any accessory structures/impervious surfaces on a .46 acre site zoned Residential-10 and located at 3014 Churchill Road.

Planning Administrator Eric Hodge (sworn) explained this application is similar to the previous cases (A-90-96 and A-91-16) noting in this case there will be 3 lots recombined into 2, the lots will conform to the Residential-10 standards, and the lots would have been exempt prior to the adoption of TC-6-15. He stated Staff is not opposed to the request.

Mr. Riemann questioned the status of the proposed text change to address the stormwater issue with Mr. Hodge responding the item is currently in discussions in the Planning Commission. He indicated staff conducted neighborhood meetings and is making amendments to the text change in response to information gathered at those meetings. Mr. Riemann questioned whether the previous applications approved by the Board would be approved under the proposed text change with Mr. Hodge responding the lots would still have to comply with the UDO impervious surface regulations.

Applicant

Attorney Isabel Worthy Mattox, Post Office Box 946, Raleigh, NC 20602, representing the Applicant (sworn), confirmed Mr. Hodge’s testimony noting this application involves 2 lots plus a portion of a 3rd lot. She indicated the Board has granted similar requests and pointed out the subject lots will be exempt under the proposed TC-2-16. She stated both lots would be below the 65% impervious surface requirements for Residential-10 and urged the Board grant the request.

Opposition

Jane Glover Simpson, power of attorney for her mother, Jo Ann Glover, 3008 Churchill Road, (sworn) stated her mother received written notice of the hearing from the city only this past Wednesday in a Berkshire Hathaway envelope. She indicated her father was an agricultural engineer at North Carolina State University and noted 3014 Churchill Road was always considered a wet lot. She pointed out a retaining wall had deflected stormwater runoff and expressed concern any construction would remove the wall. Mrs. Simpson requested the Board delay its decision so that she may obtain expert testimony.

Rebuttal by Applicant

Attorney Mattox expressed her belief the opposition’s concerns would not affect approval and asserted the stormwater issues could be addressed during the site plan approval process. She asserted expert testimony would not affect the outcome.

Rebuttal by Opposition

Sarah Jane Simpson, Oberlin Road (sworn), indicated she is Mrs. Simpson’s daughter and expressed concern regarding adding another driveway to the street with Mrs. Simpson requesting that the City’s inspectors consider all drainage off the subject property.

Mr. Silverstein pointed out the subject lots would have to meet the City’s stormwater runoff regulations as a condition for site plan approval.

Sam Bass, 1403 Nottingham Road (sworn), questioned the application’s consistency with the neighborhood noting there has been a trend to build larger homes with Chairman McLamb advising the issue before the Board is the stormwater runoff regulations and that the lots would be required to meet current regulations.

Carla Osborn, 1427 Brooks Avenue (sworn) talked about infill development and expressed concern regarding the limited amount of time given to the neighbors to respond to the notices. She expressed her belief the neighbors were being short-changed.

Attorney Mattox talked about hardship with regard to lot size, BMP placement, and reiterated the lots would have been in compliance under the old Part 10 zoning code and will be in compliance under the proposed TC-2-16.

Sally Alcorn, 3036 Churchill Road (sworn), questioned the type of required notices for a Board of Adjustment hearing with Mr. Silverstein responding the Board requires that a notice be posted on the subject property and Assistant Planning Director Travis Crane (sworn) adding property owners within 100 feet of the subject lot are also notified by mail and a legal ad is published in the newspaper no later than 10 days prior to the hearing date.

Mr. Silverstein pointed out the posted notice is the only legal requirement for the hearing with Ms. Alcorn expressing concern mailed notices were received only a few days before the meeting.

Attorney Mattox indicated she was not involved in mailing the notices; however, she asserted all UDO requirements were met.

Chairman McLamb talked about the history of stormwater related cases that appeared before the Board, circumstances surrounding those applications, and how the Board made its decisions.

Findings of Fact

1. Applicant seeks a variance from stormwater control measures of UDO §9.2.2 to construct 2 new homes on a .46 acre site. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §9.2.2, Applicant would have to provide active stormwater control measures to the lots because an existing home will be demolished, and TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size. 6. Applicant is unable to comply with UDO §9.2.2 because Applicant proposes to recombine two lots and a portion of a third into two lots, and remove a dwelling that currently straddles a lot line. 7. Even though the recombination would remove a “ghost” property line and render the remaining lots conforming, it would also trigger the stormwater control requirements specified in TC-6-15 because the existing structure would be removed. In the alternative, Applicant could subdivide the lots into one lot, remove the structure, and then recombine that lot into two lots without triggering stormwater installation requirements. 8. The new lots would have been exempt from the installation of stormwater control devices prior to TC-6-15, and a proposed ordinance, TC-2-16, will restore the exemption. 9. The proposed impervious surfaces for each lot will not exceed 65%. 10. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 11. The character of surrounding properties would not be adversely affected by the granting of the variance. 12. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 13. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property.

3. The hardship did not result from actions taken by the Applicant or the property owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved. 5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.

Motion

Chairman McLamb moved to approve the variance as requested. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Root); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.

****************************************************************************** A-92-16 – 8/8/16

WHEREAS, Charles and Rosalyn Creech, property owners, request complete relief from the active stormwater control measures and requirements set forth in Section 9.2.2 of the Unified Development Ordinance to allow for the construction of a detached house and any accessory structures/impervious surfaces on a .35 acre property zoned Residential-4 and located at 3141 Ashel Street.

Planning Administrator Eric Hodge (sworn) explained the request and indicated the lot was already recombined at the City’s request to remove a ghost property line and the existing dwelling has been demolished. He stated staff is not opposed to the request.

Applicant

Attorney Isabel Worthy Mattox, Post Office Box 946, Raleigh, NC 27602, representing the Applicants (sworn), confirmed Mr. Hodge’s testimony. She stated the proposed dwelling will have approximately 36% impervious surface and pointed out Residential-4 zoning allows up to 38%. She asserted hardships involve the lot’s size, difficulty in placing a BMP, and that the City required the lots’ recombination.

Opposition

Findings of Fact

1. Applicants seek a variance from stormwater control measures of UDO §9.2.2 to construct a home on a lot recombined from two separate parcels on which a previously existing house was demolished. 2. The Board has considered Applicants’ verified application and the evidence and testimony adduced at the hearing. 3. Applicants participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §9.2.2, Applicants would have to provide active stormwater control measures to the .35 acre lot because TC-6-15 removed the exemption for the installation of stormwater controls previously existing for lots of this size. 6. Applicants’ lots became subject to the provisions of UDO §9.2.2 when they removed the existing dwelling, which was erected straddling an interior property line in this R-4 zoning district. 7. The removal of the “ghost” property line, which was done at the request of the City, eliminated the nonconformity created by erecting a house over a property line. 8. A proposed ordinance, TC-2-16, will restore the exemption that previously existed for lots this size. 9. The recombination will create a conforming lot, and will prevent the continuation of the nonconformity by removing the interior property line. 10. The impervious surface improvements will comprise approximately 36% of the lot area. 11. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 12. The character of surrounding properties would not be adversely affected by the granting of the variance. 13. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 14. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property. 3. The hardship did not result from actions taken by the Applicant or the property owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance. 5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any

provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.

Motion

Chairman McLamb moved to grant the variance. His motion was seconded by Mr. Root and received the following vote: Ayes – 5 (McLamb, Root, Kemerait, Conti, Mial); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variance granted.

****************************************************************************** Chairman McLamb stated that, without objection, next 2 applications will be heard simultaneously.

Ms. Kemerait stated she would have to recuse herself from participation as a colleague from her law firm is representing the opposition in this application. Without objection, Chairman McLamb indicated Ms. Kemerait is excused from participation with regard to A-93-16 and A- 94-16. Ms. Kemerait left the table.

A-93-16 – 8/8/16

WHEREAS, SCJ Investments, LLC, property owner, requests a variance from all of the forestation requirements set forth in Section 9.1.9.A of the Unified Development Ordinance to allow for the construction of a detached house on a .15 acre property zoned Residential-6 Conditional Use District and Urban Watershed Protection Overlay District located at 12700 Topiary Court.

A-94-16 – 8/8/16

WHEREAS, SCJ Investments, LLC, property owner, requests a variance from all of the forestation requirements set forth in Section 9.1.9.A of the Unified Development Ordinance to allow for the construction of a detached house on a .12 acre property zoned Residential-6 Conditional Use District and Urban Watershed Protection Overlay District located at 12608 Port Chester Court.

Planning Administrator Eric Hodge (sworn) explained the requests indicating the Board has heard similar requests in the past. He stated the watershed overlay for this neighborhood was intended to protect a potential water source for Wake Forest. He stated when the UDO was adopted all watershed forestation regulations were consolidated so that the regulations applied to both large and small lots; and that was not the intention when the adoption took effect. He presented aerial photographs of the subject properties noting typical homes and driveways in the subdivision take up at least 60% of the lot area. He stated the City is working on a UDO text

9 Raleigh Board of Adjustment August 8, 2016 change to address the forestation issue for smaller lots, and pointed out the lot listed in A-93-16 has no trees at this time. He pointed out under the UDO standards, every dwelling in the development would not be in compliance. He stated staff is not opposed to the requests.

Discussion took place regarding when the proposed UDO amendment may be adopted with Mr. Hodge indicating the City Attorney’s office is working on the text change language; however, the item is not yet before the Planning Commission at this time as the text change involves several sections in the UDO.

Applicant

Attorney Charles Coble, Brooks Pierce Law Firm, 150 Fayetteville Street, representing the Applicant (sworn), pointed out there have been a number of similar cases that have appeared before the Board due to the UDO adoption noting the subject lots are very small; therefore, if the 40% forestation requirements were imposed, it would leave very little buildable area. He noted staff’s aerial photographs of the subject lots show similar conditions for the surrounding neighbors, and asserted his client’s hardship exists through strict application of the ordinance.

Opposition

Amar Singh, 2709 Charleston Oaks Drive (sworn), indicated he is an attorney licensed to practice in the State of Georgia and that he occupies the dwelling adjacent to the lot listed in A- 93-16. He talked about grading already taking place on the subject lot and stated he has an issue with sludge from the subject lot draining onto his lot. He requested the Board give him 30 to 60 days to obtain expert testimony regarding stormwater runoff and indicated he has photographic evidence of the water runoff onto his property. He asserted a delay would not put an undue burden on the Applicant.

Mr. Silverstein questioned the evidence that an expert’s testimony would address with Mr. Singh responding the engineer would provide additional insight with regard to the stormwater issue. A debate took place between Mr. Silverstein and Mr. Singh over the qualifications for giving expert testimony.

Chairman McLamb denied Mr. Singh’s request to delay the Board’s decision.

Attorney Doug Boyette, representing property owner Cheryl Davis, 12604 Port Chester Court (sworn), indicated his client received notice only last week, and asserted the Applicant created the hardship for A-94-16 as the property was cleared back in May. He went on to question the Applicant’s LLC structure and challenged the Application’s validity based on the LLC’s standing with the NC Secretary of State. He requested the Board defer its decision to its September 12, 2016 meeting in order that he and his client may determine the Applicant’s LLC status.

Attorney Coble stated the lots were cleared when his Client purchased them and asserted the LLC is in good standing. He objected to the Opposition’s request for deferral.

Planning Administrator Hodge pointed out the tree removal was not in violation of the ordinance and indicated forestation could be addressed at site plan approval. He indicated if the lots were greater than 2 acres in size the Tree Conservation Area regulations would be in effect.

Discussion took place regarding off-site siltation regulations as well as the type of preventive measures available during construction.

Chairman McLamb denied Attorney Boyette’s request to defer the Board’s decision.

Attorney Boyette re-asserted both the application as well as the LLC are defective. He cited excerpts from NC Statutes Sections 57D-2-20. Formation and 57D-3-01. Admission of members; economic interest owners and asserted the LLC members were not properly identified; therefore, under the statutes, the LLC must be dissolved. He submitted copies of the noted Statutes to the Board and reiterated the Applicant failed to comply with the States LLC statutes.

Chairman McLamb indicated he read the submitted copies of the statutes and stated he does not come to the same conclusion as Attorney Boyette.

Debate took place regarding interpretation of the LLC statutes as well as whether the Board of Adjustment has the authority to determine LLC standing.

Barbara Edwards, 12612 Port Chester Court (sworn), indicated she received her notification letter last week and expressed belief BOA decisions should not be made based on a possible regulation change. She stated the Board should delay any decision until the amendment is completed and adopted.

Mr. Silverstein noted the UDO issue applies to all lots in the subdivision with Ms. Edwards expressing her belief the Board should still delay its decision.

Danny Reeves, 2908 Charleston Oaks Drive, indicated he saw the posted notice of public hearing and noted the proposal was to build 2 dwellings of approximately 1,000 square feet. He pointed out most of the dwellings in the subdivision were approximately 4,000 square feet or higher with Attorney Coble pointing out the proposed dwelling footprint is approximately 1,000 square feet; however the overall heated square feet would be about 2,200.

Mr. Reeves went on to note houses built since the initial subdivision development were of lesser quality.

8 people stood in opposition to the applications.

Cheryl Davis, 12604 Port Chester Court (sworn), questioned the proposed setbacks noting the lots are zoned Residential-6 and asserted both dwellings will not meet those setbacks.

Planning Administrator Hodge indicated Wakefield was built as a cluster unit development; therefore, different setbacks are in place.

Attorney Coble gave a brief review of the reasons the Board should approve the applications.

Findings of Fact

1. Applicant seeks variances from UDO §9.1.9.A to allow the construction of detached houses at 12700 Topiary Court and 12608 Port Chester Court. The lots are 0.15 acre and 0.12 acre in size, and these cases are being consolidated for hearing because the Applicant and variance request is the same in both cases. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §9.1.9.A, Applicant would have to comply with a 40% forestation requirement for each lot. 6. Applicant is unable to comply with UDO §2.2.1 because compliance with the 40% forestation coverage requirement would severely limit the buildable area of the lots, and would prevent a house from being erected on either of the lots that would be comparable in size and quality to other houses in the surrounding neighborhood. 7. These lots are subject to an Urban Watershed Overlay District that was not intended to include individual lots of this size; however, when the UDO was written, the company compiling the UDO erroneously included all watershed districts in the overlay requirement, which subjects these lots to a 40% forestation requirement. 8. This neighborhood was developed to cluster unit standards, which allows reduced lot sizes and setbacks for lots in exchange for open spaces. None of the lots in the cluster unit area have been developed in a manner that would comply with a 40% forestation requirement. 9. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the properties. 10. The character of surrounding properties would not be adversely affected by the granting of the variances.

11. Denial of the variances would result in insignificant public benefit but would greatly harm Applicant. 12. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

2. The hardship results from conditions that are peculiar to the properties. 3. The hardship did not result from actions taken by the Applicant or the property owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved. 5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified or affirmed.

Motion

Chairman McLamb moved to approve the variances requested for both A-93-16 and A-94-16. His motion was seconded by Mr. Root and received the following vote: Ayes – 5 (McLamb, Root, Conti, Mial, Riemann); Noes – 0. Chairman Coble ruled the motion adopted on a 5-0 vote and the variances granted.

Ms. Kemerait returned to the table.

****************************************************************************** Chairman McLamb indicated he would have to recuse himself from participation in the following case because he is counsel to the North Carolina Department of Transportation. Without objection, Chairman McLamb was excused from participation and Ms. Kemerait assumed the Chair position for the hearing. Chairman McLamb left the table.

A-95-16 – 8/8/16

WHEREAS, the Point Church of the Triangle, property owner, requests relief from the landscaping requirements set forth in Section 7.2.8.C.2 of the Unified Development Ordinance to allow for a fence in excess of 42 inches in height to remain unscreened with planting materials adjacent to a thoroughfare on a 6 acre property zoned Residential-1 and located at 3700 Lake Wheeler Road.

Planning Administrator Eric Hodge (sworn) explained the request noting the fence was erected around the cemetery portion of the property. He indicated City Code requires landscaping in front of the fence along the street right-of-way to soften the effect; however, NCDOT had determined the additional landscaping would affect traffic sightlines. He pointed out the fence also lacks the required breaks in fencing materials along the right-of-way.

Applicant

Attorney Nicholas Karr, representing the Applicant (sworn), indicated he is also a member of the Point Church. He stated his church merged with the former Inwood Baptist Church back in 2015 and noted there has been damage caused to the cemetery including some of the grave stones, etc., so a fence was erected to preserve both the public’s and the parishioners’ safety. He acknowledged the fence was built without a permit noting efforts to contact certain staff at NCDOT were unsuccessful. He pointed out the cemetery existed prior to the road and indicated the fence was installed in such a way as to not disturb the graves. He confirmed NCDOT denied his client’s request to plant vegetation in front of the fence along the road due to sightline issues.

Mr. Riemann questioned why the fence was built without permits with Attorney Karr responding the pastors were not aware permits were required and are seeking to resolve the issue with City staff.

Discussion took place regarding the location in relation to existing trees and graves in the cemetery with Pastor Jeremy Hyde, 1513 Walnut Street, Cary (sworn) pointing out if the fence were moved further back it would disturb existing graves.

Opposition

Miley A. Perry, 3504 Lake Wheeler Road (sworn), talked about the church’s history noting there has never been a fence erected around the cemetery noting he has lived next door to the church all his life. He indicated when the fence was built it made many people unhappy. He submitted photographs of the subject fence.

Vice Chair Kemerait indicated the issue before the Board was the landscaping along the street side of the fence with Mr. Perry asserting the NCDOT would not have approved the fence asserting the fence is only 10 feet from the pavement. He acknowledged that any additional landscaping along the fence would make traffic visibility more hazardous.

Attorney Karr noted the survey included in the application packet shows the fence encroaches 4 to 5 feet in the right-of-way with Mr. Perry pointing out the road as a 60 foot right-of-way back- to-back and indicated he measured the fence’s distance from the center of the road.

Findings of Fact

1. Applicant seeks complete relief from the landscape requirements of UDO §7.2.8.C.2 to allow a fence exceeding 42 inches in height adjacent to a thoroughfare to remain unscreened with planting materials. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §7.2.8.C.2, Applicant would have to provide landscaping along the thoroughfare right-of-way. 6. Applicant is unable to comply with UDO §7.2.8.C.2 because there is insufficient room to provide landscaping adjacent to the fence. 7. The fence was erected without a permit. 8. The fence screens a cemetery from the thoroughfare, and from property across the street owned by North Carolina State University. 9. The North Carolina Department of Transportation will not allow Applicant to install landscaping outside the fence because it would encroach into the street right-of-way and interfere with traffic sight lines. 10. Applicant cannot install landscaping on the cemetery side of the fence because it would require the disturbance of existing grave sites. 11. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 12. The character of surrounding properties would not be adversely affected by the granting of the variance. 13. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 14. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property. 3. The hardship did not result from actions taken by the Applicant or the property owner.

4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved. 5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.

Motion

Vice Chair Kemerait moved to approve the variance as requested. Her motion was seconded by Mr. Conti and received the following vote: Ayes 5 (Kemerait, Conti, Mial, Riemann, Root); Noes – 0. Vice Chair Kemerait ruled the motion adopted on a 5-0 vote and the variance granted.

Chairman McLamb returned to the table.

****************************************************************************** A-96-16 – 8/8/16

Decision: Approved with the condition the sign is subject to the Parking Limited 5.5 year amortization period as outlined in City of Raleigh Ordinance No. (2015) 523 ZC 721 (Z-27(B)-14) adopted November 17, 2015 and effective February 13, 2016.

WHEREAS, DDR Southeast Capital Crossing, LLC, property owner, requests a 157.22 square foot variance from the maximum wall sign size requirements set forth in Section 7.3.4.D of the Unified Development Ordinance to allow for the erection of a 197.22 square foot wall sign on a 8.09 acre property zoned Commercial Mixed Use-3-Parking Limited (CX-3-PL) and located at 2900 and 2950 E. Millbrook Road.

Planning Administrator Eric Hodge (sworn) stated the subject property is the former Lowes Food building and went on to explain the UDO regulations for wall signs for tenants. He noted the proposed sign would not face Capital Boulevard; however, it is visible from Capital Boulevard at an angle. He noted if the sign was not visible from Capital Boulevard there would be no issue. He stated there were no frontage requirements under the old Part 10 zoning code. He went on to state Staff opposes the request noting there may be some discussion regarding this issue at the City Council level. He suggested the legislative route would be the best way to address the problem.

Discussion took place regarding the proposed sign size compared to the size allowed under the UDO.

Applicant

Attorney Michael Birch, 1330 St. Mary’s Street, Suite 460, representing the Applicant (sworn), talked about previous Board decisions regarding sign issues pointing out this is the first

16 Raleigh Board of Adjustment August 8, 2016 application under the UDO re-mapping and urged the Board grant his client’s request to erect the signs as allowed prior to the UDO re-mapping. He noted prior to the UDO his client would have been allowed a 200 square foot sign; now his clients are only allowed 40 square feet for a wall sign. He asserted facts exist to warrant the variance request, and presented an aerial photograph of the subject property pointing out the building has over 300 feet of frontage to the shopping center’s interior. He asserted if the property did not have the Parking Limited (PL) designation his client would be allowed 200 square feet of wall signage.

Dawn Hillery, Conn’s Home Plus, Woodland, Texas (sworn) pointed out the Millbrook Road side of the property is shielded with trees, so there is no visibility from Millbrook.

Attorney Birch pointed out tenants on the east side of the shopping center, including his client, are zoned with PL overlay while tenants on the west side of the shopping center are not zoned PL. He went on to question the PL designation noting Capital Boulevard is designated a Transit Emphasis Corridor (TEC), which was the driving factor for the Parking Limited designation. He pointed out Millbrook Road does not have the TEC designation. He went on to review the UDO Parking Limited standards noting Capital Boulevard is one of the most heavily traveled streets in the city. He asserted his client’s building does not benefit from the PL designation as his client’s sign will be located more than 800 feet from Capital Boulevard. He pointed out other tenants have existing signs well in excess of current UDO regulations.

Planning Administrator Hodge noted the City Attorney advised staff to begin an amortization process for the non-conforming signs with Attorney Birch pointing out the amortization period would be 5.5 years or a new sign permit is submitted and went on to point out the other tenants could have up to 200 square feet of wall signage under the old Part 10 zoning code; however, they opted for signs of 140 square feet each. Mr. Birch stated his client proposes total wall signage of 160 square feet and pointed out a 40 square foot sign is very difficult to see from both the internal street and Capital Boulevard. He went on to talk about the street orientation of nearby developments such as Mini City and asserted his client should not have to comply with PL zoning as the building does not have frontage on Capital Boulevard.

Mr. Conti questioned the sizes of the signs for Sam’s Club and AtHome with Ms. Hillery responding the AtHome sign is approximately 120 square feet and PetSmart is approximately 240 square feet.

Ms. Hillery indicated she is the Real Estate Development Manager for Conn’s stores noting the Capital Boulevard location would be her company’s 9th store in North Carolina. She asserted the current UDO sign regulations would be a severe hardship for her company and noted there would be no additional signs allowed. She pointed out only northbound drivers along Capital Boulevard would be able to see the sign and stated when her company contacted City staff in January 2016 they were advised her company would be allowed up to 200 square feet of wall signage. She pointed out her company was not told the Code regulations would change in February, and they had signed the lease and had stared renovations. She asserted her company would not have signed the lease if they knew they would only be allowed 40 square feet for a

17 Raleigh Board of Adjustment August 8, 2016 wall sign. She cited the building’s orientation and distance to Capital Boulevard as a hardship and urged the Board grant the variance.

Rick Porter, 1144 Trentini Avenue, Wake Forest (sworn), indicated his company has owned this property for 9 years. He stated his company is not looking to change the zoning and pointed out the previous tenant was permitted a larger sign. He stated the variance would permit his client to have a sign as would have been allowed prior to the UDO remapping and went on to question the aesthetics of the permitted sign’s size.

Ms. Hillery pointed out her company plans to open the store in October; however, her company was advised of the sign regulation changes in June.

Attorney Birch noted the sign regulations cited by City Staff apply to smaller shops in the downtown area as well as Cameron Village and asserted these same regulations are being applied to a 60,000 square foot tenant with 300 linear feet of frontage. He also asserted the existing building cannot comply with even the current PL regulations pointing out all the buildings and roadways are pre-existing and cannot be changed; therefore the underpinning of PL designation does not exist here. He went on to assert his client proceeded in good faith based on staff information obtained in January 2016.

In response to questions, Mr. Birch reviewed the merits for a Board of Adjustment request as opposed to a rezoning request pointing out timing is the issue as his client pulled all permit and construction is well underway with a projected store opening in October. He stated rezoning may take 5 to 6 months to process, and noted the City Council may want future redevelopment to PL standards; therefore, a variance request was the best route to take.

Planning Administrator Hodge noted PL is the most liberally applied zoning throughout the city. He noted there are other properties that may seek similar action regarding this issue. He stated in this case any future site plan may require the building to be moved closer to Millbrook Road under PL as Millbrook Road is a major thoroughfare. He pointed out TC-4-15 addressed build- to issues for pre-existing buildings.

Mr. Conti noted the Applicant is not seeking to add “Furniture” and “Appliances” signs with Attorney Birch stating those signs were not addressed in the application and was therefore not advertised. Mr. Birch went on to talk about reasons behind PL designations pointing out Creedmoor Road is not designated as a TEC, but most of the development is built as PL. He also talked about possible redevelopment for the subject site and how it may affect the building’s orientation. He indicated client is willing to accept a condition regarding sign amortization.

Discussion took place regarding the Lowes Home Improvement sign and its status under PL.

Mr. Conti questioned whether other wall sign owners have been advised of the amortization period with Planning Administrator Hodge responding not at this time. Mr. Conti questioned when the notices will go out with Assistant Planning Director Crane responding that is under

18 Raleigh Board of Adjustment August 8, 2016 discussion with the City Attorney and noting signs under PL is currently in discussion in a City Council committee.

Mr. Hodge noted he has received a lot of telephone calls regarding this issue, so the Board may see additional requests.

Attorney Birch asserted his client’s unique situation and that other requests may be submitted; however that should not affect the Board’s decision.

Opposition

Findings of Fact

1. Applicant seeks a variance from UDO §7.3.4.D to allow the installation of a 197.22 square foot wall sign. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with UDO §7.3.4.D, Applicant would have to limit the size of the wall sign to 40 square feet, which is the maximum allowed in the Parking Limited Zoning District when a building is facing a public street. 6. The subject property is a former Lowe’s supermarket in a grouping of large stores in the southwest quadrant of the intersection of East Millbrook Road and Capital Boulevard. Lowe’s had a wall sign of approximately 140 square feet, and the other large stores in the southwest quadrant have wall signs of comparable size. All buildings are accessed by interior drives. 7. The UDO established a new Parking Limited Zoning District, which was applied to the subject property through a remapping process, not by request of the property owner. Although there is no direct access from the subject property to Capital Boulevard, the subject property’s entrance does not face Capital Boulevard, and there is a building between the subject property and Capital Boulevard, the subject property can be seen from the northbound traffic lane of Capital Boulevard by an oblique angled line that is a distance of approximately 800 feet. The subject property does not have an entrance along East Millbrook Road, which is screened by trees. 8. A 40 square foot wall sign would be out of character with the wall signs on other buildings in this quadrant.

9. An amortization period will apply to the other wall signs on buildings in the quadrant, which will be allowed to remain for 5.5 years from February 13, 2016. 10. The urban form of this developed center with internal drives and access does not impact Capital Boulevard in the same manner as other properties with direct access to Capital Boulevard. 11. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 12. The character of surrounding properties would not be adversely affected by the granting of the variance. 13. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 14. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying prior decision may be reversed, modified, or affirmed buildings adjoining or in the vicinity of the property mentioned in the application. (c) Traffic conditions in the area. (d) The public records and other competent testimony concerning the location of the zoning district boundary lines.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property. 3. The hardship did not result from actions taken by the Applicant or the property owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved. 5. It is necessary and appropriate to impose the following condition and safeguard on the issuance of the variance: the variance is limited to the amortization period specified in City of Raleigh Ordinance No. (2015) 523 ZC 721 (Z-27(B)-14). 6. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of the UDO or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed. 7. If the condition hereto or any part thereof shall be held invalid or void, then this decision shall be void and of no effect.

Motion

Mr. Conti moved to approve the variance with the condition the sign is subject to the Parking Limited 5.5 year amortization period as outlined in City of Raleigh Ordinance No. (2015) 523 ZC 721 (Z-27(B)-14) adopted November 17, 2015 and effective February 13, 2016. His motion was seconded by Chairman McLamb and received the following vote: Ayes – 4 (Conti,

McLamb, Mial, Root); Noes – 1 (Kemerait). Chairman McLamb ruled the motion adopted on a 4-1 vote and the variance granted with condition.

****************************************************************************** Planning Administrator Hodge indicated the Applicant requested the next 2 applications be heard simultaneously as the cases involve adjacent lots. Without objection, Chairman McLamb indicated the cases would be heard simultaneously.

A-97-16 – 8/8/16

WHEREAS, the City of Raleigh, property owner, requests relief from the zone A protective yard wall and landscaping requirements set forth in Section 3.5.3.A of the Unified Development Ordinance for the western property line located in the southernmost portion of the property resulting in a 17 feet-20 feet transition area containing no wall or landscape material on a .92 acre parcel zoned IX3-UL-CU and NX3-UL-CU to be developed with 15 residential townhomes and located at 400 Chavis Way.

A-98-16 – 8/8/16

WHEREAS, the City of Raleigh, property owner, requests a 5 foot variance to reduce the width of the zone A protective yard requirements set forth in Section 3.5.3.A of the Unified Development Ordinance along the southern property line as well as a variance to place the wall required therein on the subject property side of the zone A planting area as well as a variance from the wall articulation requirements of Section 7.2.8.B.5. for the interior side of the wall which results in a 5 foot wide zone A protective yard with landscaping on the outside of the wall on a .27 acre parcel zoned IX3-UL-CU to be developed with a two-story general building used for commercial purposes and located at 419 South East Street.

Planning Administrator Eric Hodge (sworn) indicated the variance request for A-97-16 involves the southeast corner of the property where the transition section is located. He noted the City is selling the lots in both A-97-16 and A-98-16 for redevelopment. He pointed out there will be no building erected on this portion of A-97-16; there will be only landscaping.

Mr. Hodge went on to note the issue for A-98-16 involves existing walls and proposed landscaping. He stated Staff is not opposed to either request.

Applicant

Attorney Michael Birch, Morningstar Law Group, 1330 St. Mary’s Street, Suite 460, representing the buyer of the subject properties (sworn), confirmed Mr. Hodge’s testimony and submitted a notarized letter in support, which reads as follows:

To Whom It May Concern:

As the property owners of 509 East Cabarrus Street, we met with the development team on December 16, 2015 regarding the proposed development for the Stone's Warehouse site. As part of this development, we understand that they are requesting a variance to allow for a 5' reduction in the landscaped portion of the Neighborhood Transition (Zone A only). We are in support of this request based on the following conditions:

1) We understand that the overall dimensions of the Neighborhood Transition will not be reduced. Zones A and B will still comprise 0'-50' from our property line and Zone C will still comprise 50'-100' from our property line. 2) We understand that the 5' reduction in the landscaped portion will allow the public courtyard to be increased by 5' to improve its benefit to and use by the neighborhood as a public amenity. We understand that the area of Zones A and B will not be used for outdoor dining or other public gathering space. 3) We understand that the development team will install plant selections of our choice (to the extent permitted by the City of Raleigh) in the landscaped area on their property and, if desired by us, up to 5' on our property. 4) We understand that the development team will remove our existing rear wood fence and extend our existing side wood fences to tie into the new masonry wall.

Secondly, we understand that a solid brick screen wall will be installed in the landscaped portion and is required to be between 6'-6" and 9' in height. Within this range, we would prefer a height of 6'-6".

Sincerely,

Christopher and Kimberly Jokisch Property Owners 509 East Cabarrus Street

Fred Belledin, 711 Gaston Street (sworn), talked about the existing concrete wall and parking lot in A-98-16 noting the neighbor requested vegetation be planted on their side of the wall, so the Applicant would have more room for the proposed commercial building and public plazas.

Attorney Birch talked about similar development permitted by the City and urged the Board grant the requests.

Opposition

Findings of Fact

1. Applicant seeks variances from UDO §3.5.3.A with regard to the installation of protective yard wall and landscaping requirements. These cases have been consolidated because the Applicant and relief requested is the same for adjacent lots. 2. The Board has considered Applicant's verified application and the evidence and testimony adduced at the hearing. 3. Applicant participated in a pre-application conference with a Planning and Development Officer to review the Application. 4. Public Notice requirements of UDO §10.2.1.C. have been met. 5. In order to comply with §3.5.3.A, Applicant would have to install protective yards along the western line in A-97, and along the southern line in A-98. 6. Applicant is unable to comply with the UDO because compliance with the transitional yard requirements in this redevelopment project would be detrimental to surrounding properties. 7. In A-97, the installation of the wall and landscaping would prevent the utilization of a proposed open courtyard area for a residential condominium project. 8. In A-98, an adjacent property owner desires an existing wall remain, and that landscaping be installed on their property so that a proposed commercial building have more public area and walkways. 9. Strict compliance with the provisions of the ordinance would deprive Applicant from the reasonable use of the property. 10. The Applicant's actions did not create the hardship. 11. The character of surrounding properties would not be adversely affected by the granting of the variance. None of the persons opposing the variances live near the subject property. 12. Denial of the variance would result in insignificant public benefit but would greatly harm Applicant. 13. The Board has also considered the following relevant factors: (a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. (b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application.

Conclusions of Law

1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property. 3. The hardship did not result from actions taken by the Applicant or the property Owner. 4. The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured, and substantial justice is achieved.

5. This decision is subject to review for fraud, material misrepresentation, or other misconduct at the proceeding or for violations on the subject property of either any provision of Chapter 10 of the Raleigh City Code or an imposed limiting condition, and if such a determination is made by the Board, its prior decision may be reversed, modified, or affirmed.

Motion

Chairman McLamb moved to approve the variance requests for both A-97-16 and A-98-16. His motion was seconded by Ms. Kemerait and received the following vote: Ayes – 5 (McLamb, Kemerait, Conti, Mial, Riemann); Noes – 0. Chairman McLamb ruled the motion adopted on a 5-0 vote and the variances granted.

****************************************************************************** REPORT OF THE BOARD’S ATTORNEY

Mr. Silverstein indicated Staff may have a report with regard to the Oakwood North fence case.

Assistant Planning Director Travis Crane indicated staff has been in discussions with the petitioners regarding a possible request to the City Council for to reduce the TCA.

****************************************************************************** MINUTES – JULY 11, 2016 BOARD OF ADJUSTMENT MEETING – APPROVED AS WRITTEN

Chairman McLamb indicated Board members received copies of the July 11, 2016 meeting minutes. Chairman McLamb moved to approve the minutes as written. His motion was seconded by Ms. Kemerait and put to a vote that resulted in all members voting in the affirmative except Mr. Williams, who was absent. Chairman McLamb ruled the motion adopted.

ADJOURNMENT

There being no further business, Chairman McLamb declared the meeting adjourned at 3:58 p.m.

Ralph L. Puccini Assistant Deputy City Clerk Clerk to the Board of Adjustment