TOWN OF CARY
ZONING BOARD OF ADJUSTMENT 
MINUTES
Monday, September 11, 2006, 7 p. m. 
Cary Town Council Chamber
316 N. Academy Street, Cary, NC
Web Site: http://www.townofcary.org

1.  Call to Order:  The meeting was called to order by Chairman Gaines Weaver at 7:03 p.m.

2.  Roll Call:
Board members present:   Lair Block, Robert Cassell, Steve Crutchfield, Eric Strom, Gaines Weaver-Chairman, Lea Strickland-Vice Chairman, Catherine Heath, ETJ  
Board members absent:   Charles McDarris

Quorum:    Ms. Strickland requested clarification from Ms. Carlyle if there was in fact a quorum present so the meeting could continue.  Ms. Carlyle stated there was a quorum present and can proceed.

Staff Present:  JoAnne Carlyle (Assistant Town Attorney), Jennifer Currin (PL), Lawrence Hardee (PL), and Shelley Kirk (Secretary)

Agenda Adoption:  Prior to making a motion to adopt the agenda, it was noted for the record that the New Business item will be presented by JoAnne Carlyle instead of Ricky Barker.  Ms. Strickland then made a motion to adopt the agenda, which was unanimously adopted by vote of 7-0.

3.  Action on Minutes from the June 12, 2006 meeting:  Eric Strom made a motion to approve the minutes and was seconded by Ms. Strickland.  The Board voted unanimously (7-0) to approve the minutes.

4.  New Case Hearings:   

APPLICATION     #06-V-002
LOCATION:         105 Canberra Court, Cary, NC
APPLICANTS:     Jose L. Kofman and Tracy Richards
OWNERS:          Same
REQUEST:         An encroachment of 1.9' into the side yard setback to make the detached single family dwelling unit a legal structure

TESTIMONY: 
The following individuals were sworn in to give testimony:  Jennifer Currin, Jose Kofman, Michael Frazier, and Mark Wolfe.  Ms. Currin presented the case for the Town.   She reviewed the main points, emphasizing set backs, lot dimensions, and lack of foundation inspections back in 1992 when the house was built, which probably caused the non-compliance from builders at that time.  Mr. Frazier, attorney for the applicants, presented their case and spoke in favor of the application.  Mr. Frazier addressed each of the five criteria in response to “Practical Difficulty” that may result from strict compliance with the Ordinance’s standards (items 12 through 15 from case worksheet).  Mr. Frazier also stated that the Homeowner’s Association was in favor of the variance approval as it is in keeping with the high level of taste, design, and harmony intended by the original developers.

Mr. Weaver opened the floor for questions by the board or for oppositional speakers.  Having no questions or additional speakers, the hearing was closed for discussion.

UPON HEARING ALL TESTIMONY AND EVIDENCE PRESENTED, THE BOARD DETERMINED THE FOLLOWING:

FINDINGS OF FACT:
1. The application for a variance was filed by all the owners for the land affected by the variance.
2. The applicant took part in the pre-application conference required by 3.20.3 (B).
3. The property is described as follows:
    Site Address: 105 Canberra Court, Cary, NC 27513
    PIN # 0765526793    
    Lot #23                                       
    Block: N/A
    Subdivision: Harrison Place        
    Unit or Section:  N/A
    Total lot/tract size: 0.61 acres (survey attached)  
    Existing Zoning District: Residential-8 (R-8)
4. The property is not located in a PDD.
5. The property is improved with a detached single family dwelling unit.
6. The variance requested is to encroach 1.9 feet into the required 15 feet side yard setback.
7. Minor Modification procedures were unable to address the hardship.
8. Homeowner’s Association approval has been obtained and a copy is attached.
9. There are no written zoning conditions or conditions that are part of a special use permit, a PDD approval, or subdivision or site plan approval that will be varied by this request.
10. A sketch of the variance requested is attached.

AND
11.  Special circumstances or conditions exist that are not common to similarly situated areas or buildings.
           
AND

12.  Practical Difficulty may result from strict compliance with the Ordinance’s standards.  The Board considered the following:

a.  Whether there can be any beneficial use of the property without the variance.
Yes, but further beneficial use cannot be had without Board of Adjustment’s variance.  A house has been built upon the property since 1989.  Since the lot is developed with a single family dwelling, there is beneficial use of the property.  However, the house is an illegal structure since it currently does not comply with the setback requirements.  

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.
The community already has numerous incidents of similar violations. Some of those have been previously “waived” on record by the developer and the evidence did not show any circumstances where the setback has been enforced.  No changes are proposed to the existing structure. The house is existing and has not met the required setbacks on the recorded plat since it was erected.  The current side setbacks in a Residential 8 (R-8) zoning district are 10’. The recorded plat exceeds the current minimum setbacks required.  The character of the neighborhood would not be substantially altered and the adjoining property owners would not suffer a substantial detriment as a result of the variance.

c.  Whether the variance would adversely affect the delivery of public services such as water and sewer.
No. The variance would not adversely affect the delivery of public services such as water and sewer.

d.  Whether the applicant purchased the property with knowledge of the requirement.
Purchase of this property was conditioned on the successful pursuit of this variance.  Contract remedies do not adequately address the owners’ inability to comply with the Town of Cary LDO; only the Town can do so.

e.   Whether the applicants’ predicament cannot be mitigated through some method other than a variance.
There is no other method of satisfactorily mitigating this setback violation.  It has already been “waived” by the Homeowners’ Association.  The applicant cannot correct the procedure through the Minor Modification process.  

AND

13. 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 intent of the LDO will be met since the variance requested will not reduce the side setback below the current minimum requirements.  If the variance is granted, the side setback will be 13.1 feet for 105 Canberra Court.  The LDO requires a minimum 10 feet side setback.

AND

14. 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. 

AND

15. The variance shall represent the least deviation from the regulations that will afford relief. 
The existing house encroaches 1.9 feet into the side setback. The variance requested is only for 1.9 feet and the house will still be illegal if the variance for 1.9 feet is denied.

PRELIMINARY STATEMENT:  After conducting a duly advertised public hearing, considering and reviewing the application materials, the evidence submitted, the comments of the general public, the sworn testimony at the public hearing, and the approval criteria of Section 3.20.5 of the LDO, Ms. Heath made the following:

MOTION TO GRANT VARIANCE WITHOUT CONDITIONS  
After conducting a duly advertised public hearing and reviewing the application materials, testimony and evidence, and the approval criteria of Section 3.20.5, I move that we grant the variance to encroach 1.9 feet into the required 15 foot side yard setback

ACTION:  Board Concluded:

RESOLUTION
1.  Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board finds proposed findings 1-10 and 11-15 above, and concludes that the applicant meets each of the approval criteria set forth for a variance in Section 3.20.5 of the Town of Cary LDO.

2. The applicant is hereby granted a variance to encroach 1.9 feet into the required 15 foot side yard setback.

Mr. Block seconded the motion.  The applicant’s request for variance was GRANTED by the Board’s unanimous vote of 7 - 0.

5.  Old Business:  None

6.  New Business:   JoAnne Carlyle, Assistant Town Attorney, reviewed Policy Statement 150 with Board Members.  Ms. Carlyle discussed the background of this new Policy as being generated at the request of council to have standard procedures for all boards.  Specific areas highlighted included:  (a) Reminder that the Mayor appoints the boards’ council liaison and due to recent vacancy, this will be an upcoming agenda item; (b) By Laws are required to be posted on Town website, and that this boards’ are still in review at Town Attorney’s office; (c) The “open meetings” requirement that includes voting to ensure there is no appearance of secrecy; (d) Insurance that all motions need to be of substance to ensure proper recording; and (e) Definitive responsibilities of board chairperson and to that requirement a future training will be forthcoming.  Mr. Weaver’s comment was that in the future, should there be multiple cases, that the case numbers be clearly marked to ensure correct motions were attached to correct case. There was no further discussion or comments from the Board on this policy.

7.  Adjournment:   Mr. Weaver called for a motion of adjournment.  Mr. Block made the motion which was seconded by Ms. Strickland.  The Board adjourned at 7:30 p.m, 

Attachments:  HOA Approval
                      Lot Survey