TOWN OF CARY
ZONING BOARD OF ADJUSTMENT 
MINUTES

Monday, May 12, 2003, 7:00PM

Town Hall, Building A, Auditorium
316 N. Academy St., Cary, N.C.
Web Site: http://www.townofcary.org

PLEASE NOTE: The Board of Adjustment is a quasi-judicial board and all testimony before it must be "sworn" testimony. All persons wishing to speak on an agenda item this evening will be sworn in. If you are sworn in, you do not have to speak; but if you wish to speak, you must be sworn in. All persons wishing to speak will be heard; however, the Board requests that a group be represented by a spokesperson in order to keep repetitive testimony at a minimum. Inflammatory or immaterial testimony will not be allowed.

1.   Call to Order
The meeting was called to order by Chairman Gaines Weaver at 7:00 p.m.

2.   Roll Call

 

Board Members Present-Voting:  Jeffrey Bartley, John Berndt, ETJ,  Lair Block, Michael Cantrell, Steve Crutchfield, T.C. Frick, Vice Chairman Allan Koeppel, Eric Strom, John Werner, Chairman Gaines Weaver

 

Board Members Absent:  Alternate Larry Snead and Alternate Lea Strickland

 

Staff Present:  Chris Simpson, Beth Lewis, Walter Harris, and June Nemetz.

  

3.   Minutes

 

Decisions from the March 10, 2003 meeting were prepared in written form by Town staff and sent to Board members.  Board members noted no errors and a final version of each decision was signed by the Chairperson and mailed to the applicants.

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Action on March 10, 2003 minutes:   Mr. Werner made the motion to approve the minutes, which was seconded by Mr. Bartley , and the Board voted (10-0) for approval.

 

4.   Sworn Testimony:

The following individuals were sworn in to give testimony:  Beth Lewis,  Walter Harris, Jon Lazar, Mike Vassalio, Paul Mariuaccio, Timothy Warnn and Sang Paek 

1.   Case Hearings  

APPLICATION:  03-V-003 

STAFF CONTACT:  Beth Lewis

SUBJECT PROPERTY:  208 Arbordale Court

APPLICANT:  Jon and Doreen Lazar

REQUEST:   The applicant is requesting a variance of 5’ to the required 5’ setback to retain an existing on-grade pool deck.  The applicant hired contractors who constructed a pool and deck in the rear yard of a single-family residence.  A building permit was sought and granted for the pool, which was to be 10’ from the side property line.  However, without a permit, a deck was also installed.  The deck not only encroaches the 5’ setback required from the side property line for on-grade structures, it encroaches into the neighboring property.  The Zoning Board of Adjustment has been asked to grant a 5’ variance to the required 5’ side yard setback for the deck, so it can extend up to the property line.  The Board does not have the authority to grant permission for the deck to extend into the neighboring property.

After hearing testimony from staff, the applicant, and two contractors, the Board discussed the application.  Testimony included testimony from the pool contractor and paving contractors that they were not aware of the set back requirement, that the pool contractor always obtained a permit for the footprint of the pool only, that  no permit was required for the pool deck.  Staff confirmed this and stated that the only inspections were for electrical work in the pool.   Mr. Weaver stated that it appeared to be a quirk in the Town’s UDO that generally concrete sidewalks and driveways can be installed right up to the property line, and no permit is required for construction of a pool deck.  He stated that it appeared inspections and permits should have inquired about deck for the pool shown on the permit application.  Mr. Weaver stated that the Town had no procedure in place to catch errors such as this.  Mr. Werner stated that there were three primary parties.  The Homeowner relied on his contractors and the Town review process.  The Town UDO is unusual in that it allows some concrete structures up to the property line. For these reasons, he stated that he believes that to take out the five foot encroachment would require major demolition of the pool which is unreasonable. 

ACTION:

Mr. Werner moved that, based on the application, testimony and evidence, the general purposes of the UDO, and the above findings, the Board concludes that the variance requested would be in harmony with the general purpose and intent of the zoning ordinance, and that there are practical difficulties or unnecessary hardships that result from carrying out the strict letter of the Cary UDO.

Mr. Werner’s motion included that the findings 1 through 8 below be found, and that Mr. & Mrs. Lazar be granted a variance to retain an existing pool deck in its current location at 208 Arbordale Court .  This variance is to run with the pool, not with the property.

FINDINGS OF FACT: 

1.    The property is owned by Jon and Doreen Lazar.  Mr. Lazar has requested the variance.

2.    The property is a pentagon and has the following dimensions:  Approximately 74’ along Arbordale Court , 212’ along the north (side) property  line, 207’ along the south (side) property line, and 66’ and 75’ along the two lines that make up the rear property line.  The property is just    over one-half acre in area.

3.    The property is developed with a single-family residence.

4.    The property is zoned R-12CU, which is residential and requires a 20 foot front yard setback, a 25 foot rear yard setback, and a 10 foot  side yard setback.  On-grade structures are permitted to encroach the side yard setback, but may be no closer than 5’ from the property line.

5.    The CU zoning on this site pertains to the lot size only, and does not impose any condition that is inconsistent   with this request.

        6.    A building permit was obtained for the construction of the pool (drawing attached), but no permit was obtained,
              or required, for the construction of the concrete, on-grade deck.

      7.   The conditions are not the result of the applicant’s own doing.  The applicant relied on the pool contractor to
            follow the Town of Cary regulations.

8.   Construction of the deck will not impair emergency access, create a fire hazard, or otherwise be contrary to public health.  Access to both properties is not impaired by the deck.

     Mr. Koeppel seconded the motion.  The Board voted (9-1) in favor of the motion to approve the variance application,
     with Mr. Block having the one dissenting vote.

     ACTION:  

      Mr. Koeppel moved to request Town of Cary staff to revise the current pool permit application to require complete and detailed diagrams including pool, deck and all other accessories, to avoid a situation like this happening in the future.  Mr. Werner seconded the motion.  The Board voted (10-0) in favor of the motion that Town planning staff  discuss with Town inspections staff the desirability of requiring such information on pool permit applications.

    New/Old Business:  None

    Adjournment:  Mr. Weaver adjourned the meeting at 7:50 p.m.