-
Call
to Order
The meeting was called to order by Chairman Gaines
Weaver at
7:00 p.m.
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- 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,
Chairman Gaines
Weaver and John
Werner
Board Members Present –
Non-voting: Alternate
Susan Riggsbee
Board Members Absent: Alternates
Lea Strickland and Peter Coleman
Staff Present:
Chris Simpson, Beth Lewis, June Nemetz and Mark Tutor
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- Minutes
Decisions from the September
8, 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 Chairman and mailed to the applicants.
Action on Minutes from the September 8, 2003 meeting: Mr. Werner
moved to approve the minutes, Mr. Strom seconded the motion
and the Board voted (10-0) to approve the minutes.
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- Sworn
Testimony
The following individuals were sworn in to give testimony: Beth
Lewis, Mark Tutor, John Thoms, Eugene Coats,
Debbie Swift, Jeannette Bohland, Charles D. Williams, Robert A.
Goodman, and Ira Austin Swift, Jr.
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- Case
Hearings:
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APPLICATION:
04-A-013
STAFF CONTACT: Beth
Lewis
SUBJECT PROPERTY:
111
Shannon
Oaks Circle
,
Cary
,
NC
27513
APPLICANT:
Baxter’s Blue Marlin
OWNER(S):
Baxter’s
Blue Marlin
REQUEST:
Administrative Appeal of Zoning Officer's decision that sign placed
without permit must
be removed.
TESTIMONY:
Mr. John Thomas, location General Manager for Baxter’s Blue Marlin,
testified in favor of the application
on behalf of the applicant.
Mr. Thomas introduced into testimony a copy of a sign permit.
ACTION: Mr.
Koeppel moved that, after conducting a duly advertised public hearing and
reviewing the application,
testimony, and evidence and the general
purpose of the LDO, we find the administrative officer erred in the
application or
interpretation of the terms of the LDO and
the Notice of Zoning Citation is not applicable.
FINDINGS
OF FACT:
1.
The applicant is Dennis Thompson LLC manager.
2.
The property is developed with Baxter’s Blue Marlin Restaurant.
3.
The property is zoned PDD, Major, and is part of the
Kildaire
Community
Activity
Center
.
Mr. Block seconded the motion.
Mr. Weaver moved that an amendment be added to
the motion stating that the sign is in fact the same sign that was
erected in reliance on a permit issued by the Town and that the
Town therefore be estopped from requiring that the sign
be removed as long as that permit is in existence. (Mr.
Swift submitted a copy of the permit during the meeting.)
Mr. Koeppel seconded the motion for the amendment.
The Board voted (9-1) in favor of the motion to amend Mr.
Werner’s motion with Mr. Cantrell casting the dissenting
vote.
The Board then voted (9-1) in favor of the
amended motion to approve the Administrative Appeal application with
Mr. Cantrell casting the dissenting vote.
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APPLICATION:
03-V-014
STAFF CONTACT:
Beth Lewis
SUBJECT PROPERTY:
202 Custer Trail,
Cary
,
NC
27513
APPLICANT:
Eugene and Patricia Ann Coats
OWNER(S):
Eugene and Patricia Ann Coats
REQUEST:
Variance of
1'9” to the required 5' setback to retain a deck constructed in error.
TESIMONY:
Eugene
Coats, the applicant,
testified in favor of his application.
ACTION:
Mr. Block
moved that, based
on the application, testimony and evidence and the general purposes of the
LDO, the Board concluded that the applicant meets each of the approval
criteria set forth for a variance in Section 3.20.5 of the Cary LDO.
Mr. Block’s motion included that all of the findings below be found, and
that Mr. & Mrs. Coats be granted a variance to retain a deck
constructed in error.
FINDINGS
OF FACT:
1. The
property is owned by Eugene and Patricia Coats, who have requested the
variance.
2.
The property has the following dimensions: Approximately 100’ along
Custer Trail, 160’ along the eastern side
property line, 140’ along the western
side property line, and 50’ along the rear property line.
3. The property
is developed with a single-family residence.
4. The property is zoned
PDD Major, and requires a setback of 5’ for any decks, porches, similar
structures projecting
from the principal structure.
5. The applicant
would be unable to get a building permit to construct a deck where the
deck currently exists.
6. The applicant took
part in the required pre-application conference.
7. Special
circumstances or conditions exist that are not common to similarly
situated areas or buildings. These
special circumstances are:
The applicant says the deck was part of the original residential
structure and has been
in place since 1990.
8. Practical Difficulty
may result from strict compliance with the Ordinance’s standards
a. Whether there can be any
beneficial use of the property without the variance. Finding the structure
can be
used
without the deck.
b.
Whether the essential character of
the neighborhood would be substantially altered or whether adjoining
properties would suffer a substantial detriment as a result of the
variance. Finding the deck has
been in
place
since 1990 and this department has received no complaints about it that we
have a record of;
c.
Whether the variance would adversely
affect the delivery of public services such as water and sewer. Finding
services are being delivered to the surrounding residences.
d.
Whether the applicant purchased the
property with knowledge of the requirement. Finding the applicants
purchased the residence while it was under construction and did not know
there was a concern about the
location of the deck;
e.
Whether the applicants’
predicament can be mitigated through some method other than a variance.
Finding the
only
solution is to remove a foot of the deck.
9.
The requested variance will not have
the effect of nullifying or impairing the intent and purposes of the
specific
standards, the Ordinance or the
Comprehensive Plan. The ordinance provides for a variance to correct a
construction
error.
10. The
requested variance will not have the effect of nullifying or impairing the
intent and purposes of the specific
standards, the Ordinance or the
Comprehensive Plan. The ordinance provides for a variance to correct a
construction error.
11. The
conditions or circumstances found to affect the applicant’s property are
not of so general or recurrent a nature
as to make reasonably practicable the
formulation of a general regulation to address the conditions or
circumstances.
12.
The
variance shall represent the least deviation from the regulations that
will afford relief. The
applicants are
requesting to maintain the deck in its
current location and shape, and no additions are sought.
Mr. Frick seconded the motion. The
Board voted (10-0) in favor of the motion to grant the variance
application.
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APPLICATION:
04-V-001
STAFF CONTACT: Beth
Lewis
SUBJECT PROPERTY:
202 Mint Hill Drive
,
Cary
,
NC
27519
APPLICANT:
Ira and Debbie Swift
OWNER(S):
Ira and Debbie Swift
REQUEST:
Variance of 4’ to
the required 25’ rear setback to construct an addition to the family
room, dining room, utility room and shop area of a single family
residence.
TESTIMONY:
Mrs. Debbie Swift, applicant, testified in favor of her application.
Ms. Jeannette Bohland expressed
concerns on behalf of the
homeowners association. Mr.
Charles Williams and Mr. Robert Goodman testified in favor of the
application.
ACTION:
Mr. Werner moved that based
on the application, testimony and evidence and the general purposes of the
LDO,
the Board concluded that the applicant meets each of the approval
criteria set forth for a variance in Section 3.20.5 of the
Cary LDO.
Mr. Werner’s motion included that all
of the findings below be found and that Mr. & Mrs. Swift be granted the
variance to
construct an addition to their home.
FINDINGS OF FACT:
-
The property is
owned by Ira and Debbie Swift,, who have requested the variance.
-
The property has
the following dimensions: Approximately 60’ along the front and rear
property lines, and 85’ along the side property lines.
-
The property is
developed with a single-family residence.
-
The property is
zoned PDD Major, and requires a 25’ rear setback for enclosed
structures.
-
The applicant
would be unable to get a building permit to construct the planned first
floor addition without a variance.
-
The applicant
took part in the required pre-application conference by e-mail.
-
Special
circumstances or conditions exist that are not common to similarly
situated areas or buildings. These special circumstances are:
An exaggeratedly large buffer in the rear of the property that
would not create any hardship to the property owners in the rear.
Mr. Crutchfield seconded the motion. The
board voted (7-3) in opposition of the motion to grant the variance with Mr.
Crutchfield, Mr. Frick and Mr. Werner casting the dissenting votes.
This
motion failed for lack of the concurring vote of at
least eight members.
Mr.
Weaver moved that based on the application, testimony and evidence, the
general purposes of the LDO, and all of the findings below, the Board
concluded that the applicant has not met the approval criteria set forth for
a variance in Section 3.20.5 of the Cary LDO, and the application be DENIED.
FINDINGS
OF FACT:
-
The property is
owned by Ira and Debbie Swift, who have requested the variance.
-
The property has
the following dimensions: Approximately 60’ along the front and rear
property lines, and 85’ along the side property lines.
-
The property is
developed with a single-family residence.
-
The property is
zoned PDD Major, and requires a 25’ rear setback for enclosed
structures.
-
The applicant
would be unable to get a building permit to construct the planned first
floor addition without a variance.
-
The applicant
took part in the required pre-application conference by e-mail.
-
No special
circumstances or conditions exist that are not common to other similarly
situated areas or buildings.
·
The property is a common rectangular shape.
·
It is of the same size as the others in the neighborhood.
·
The required setback does not impact this property more than
others in the neighborhood.
·
While the residence is one of the smaller ones, it is not the
smallest one in the immediate area.
An addition that
meets the setbacks could be constructed
that would make this residence at least as large as the surrounding
residences.
·
The aerial shows that the rear setbacks along the greenway are
all quite even, so this residence is currently no
further or closer to the rear property
line than the neighboring residences.
·
The property backs up to a greenway, which is not uncommon in
Cary
. Although the greenway is
not improved at
this time, the aerial shows a footpath
has been worn, indicating use. The
greenway is also shown on Cary’s
greenway plan.
-
There is no
practical difficulty that may result from strict compliance with the
Ordinance’s standards
a.
Whether there can be any beneficial use of the property
without the variance. Finding the structure can be used
as a residence without the addition, or
the addition could be reduced in size to accommodate the required
setback.
The deck as planned and the second story addition could be
constructed;
b.
Whether the essential character of the neighborhood would
be substantially altered or whether adjoining
properties would suffer a substantial
detriment as a result of the variance.
Finding the setbacks are even along
the rear property lines abutting the
greenway, and the character of the rear yard areas along the greenway
could
be affected;
c.
Whether the variance would adversely affect the delivery
of public services such as water and sewer.
d.
Whether the applicant purchased the property with
knowledge of the requirement.
e.
Whether the
applicant’s predicament can be mitigated through some method other
than a variance. Finding a
smaller addition that meets the setback could
be constructed.
-
The requested
variance will have the effect of nullifying or impairing the intent and
purposes of the specific standards, the Ordinance or the Comprehensive
Plan. Since the property is
of a common size and shape for the neighborhood, a variance would offer
this property an advantage not available to others with the same
circumstances, impairing the intent of the LDO.
Additionally, the greenway that abuts this property is part of
the Parks, Recreation and Cultural Resources Master Plan.
An addition that encroaches the required setback from the
greenway may cause users of
the greenway to feel they are intruding into this property, as the other
residences are further from the greenway.
10. The
conditions or circumstances found to affect the applicant’s property
are of so general or recurrent a nature as to
make reasonably practicable the
formulation of a general regulation to address the conditions or
circumstances. This
property is of common size and
shape for the neighborhood, and the 25’ rear setback does not affect
this property
any more harshly than any other.
11. The variance does not represent the least deviation from the
regulations that will afford relief.
A smaller addition, to
mirror the planned second story
addition, would meet the required setback.
Mr.
Strom seconded the motion. The
Board voted (7-3) to deny the variance request with Mr. Crutchfield, Mr.
Frick and Mr. Werner casting the dissenting votes.
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