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TOWN OF CARY
1.
Call to Order: The
meeting was called to order by Chairman Gaines Weaver at 3.
Agenda: ADOPTED Ms.
Heath made a motion to adopt the agenda as written and was seconded by Mr.
Block. Adopted 5-0. Town
of 6.
Miscellaneous: The
Board addressed the following: a.
Councilman Portman presented a Proclamation to the Board Members in
recognition for their community service to 7.
Hearing(s): APPLICATION/CASE#:
07-V-02 PROPERTY
LOCATION:
Mr.
Hardee presented the Staff Report, by reviewing main points, describing setback
requirements shown on the recorded plat as:
Front – 25’, Rear – 20’, Side aggregate. – 15’, Side
Minimum – 10’, Corner side – 20’, Buffer Setback (Building) –
15’, Buffer Setback (All other structures) – 5’.
The house was approved for construction with the house being shown
9.37’ from the buffer and the deck being shown 1’ from the buffer.
The Town of Board
discussion: Mr. Block asked if
other violations associated with the property would also be considered by
the Board tonight, specifically as such relates to the structure’s deck.
Ms. Currin clarified that only the buffer encroachment was the only
issue before them at this time. In
addition, the Land Development Ordinance does not allow a deck variance to
come before the board. Mr.
Ward then presented testimony in support of his request for the variance.
He explained that the information relating to the encroachment or
other violations was not provided at the closing; He stated that he was
trying to go through the right process to fix the code violations and at
this time he was asking the Board to make a decision on the buffer setback
encroachment. In response to
Mr. Block, Mr. Ward stated he did not get a survey of his own before
closing, since the survey from the prior owners, the Crooks, was only 2
years old at that time (2003 completed).
Mr. McDarris inquired as
to the amount of damages the applicants would or would not sustain in the
event the Board ordered the addition removed and whether the costs/value
should be considered. Ms
Carlyle briefly reviewed the approval criteria set forth in the Land
Development Ordinance and reminded the Board to consider all evidence
should be considered in relation to the criteria set forth in the LDO. Opposition
or Rebuttal: None;
the public hearing was closed. Discussion
& Findings of Fact: Mr. McDarris and Ms. Heath expressed
question and concern of setting a precedent in the event the request for
the variance was granted. Mr.
Weaver discussed his approach in that he doesn’t consider practical
difficulty criteria as an absolute and that each the Board should weigh
each of them separately for each case.
Mr. Weaver stated that he had considered all factors of the
criteria as to the culpability of the Applicant.
After additional, brief discussion regarding whether or not the
applicant had met all of the criteria required for the granting of the
variance, Mrs. Heath made
the following MOTION: After conducting a duly
advertised public hearing and reviewing the application materials,
testimony and evidence presented, and the approval criteria of Section
3.20.5, I move the Board grant the variance without conditions because the
Applicant has met the required conditions for granting a variance due to
the agreed to Facts #1-10 and the following: Findings of
Fact: 1.
The application for a variance was filed by all the owners for the
land affected by the variance; AND 11.
Special circumstances or conditions exist that are not common to
similarly situated areas or buildings. a.
The property was built prior to buffer requirements.
Owner(s) prior to Applicant failed to get proper permits to build
the addition and to bring the addition into code. 12.
Practical Difficulty may result from strict compliance with the
Ordinance’s standards. a.
There cannot be
any beneficial use of the property without the variance. If applicant
fails to receive the variance as requested, damages will result to
existing structure and Applicant will have to purse litigation regarding
liability in the matter and would incur costs.
b.
The
essential character of the neighborhood would not be substantially
altered, nor would adjoining properties suffer a substantial detriment as
a result of the variance. There
will be no alteration to neighborhood character by the granting of a
variance. c.
The variance
would not adversely affect the delivery of public services such as water
and sewer. There would be no
effect.
d.
The applicant
purchased the property without knowledge of the requirement.
Applicant testified that the survey they relied upon did not
provide information that informed them of the violation(s) and there was
no knowledge prior to the purchasing of the property. e.
The
applicants’ predicament cannot be mitigated through some method other
than a variance. Staff
testified that without the variance, the structure would be considered
“illegal” and in violation of Town of Cary Ordinances.
There is other mitigation available to applicant. 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. 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.
Applicant’s case has circumstances that are specific to
the property, including the location and the date of construction.
AND
15.
The variance represents the least deviation from the
regulations that will afford relief. SECOND/VOTE: 8. Old
Business: None a. Item for the record: The
Board Secretary had forwarded a request for Board members’ input for the
2007 calendar, changes to date and/or time on c. The Board is required to elect
a Vice-Chair from among current Board members to fill the vacant seat left
by Lea Strickland. Mr. Weaver
opened the floor for nominations after making his own for Mr. Block.
Mrs. Heath made the motion that Mr. Block be elected as
Vice-Chairperson, seconded by Mr. McDarris.
The Board voted unanimously in favor - 5-0. 10.
Adjournment: Mr.
Weaver called for a motion of adjournment.
Mrs. Heath made the motion to adjourn and was seconded by Mr.
McDarris. The Board adjourned
at Attachments:
Additional surveys inadvertently left out of Member Packets ______________________________________________ |