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TOWN OF CARY
Monday, October 5, 7 p. m. 1.
Call to Order:
The
meeting was called to order by Vice Chairman Lair Block at 2.
Roll Call:
Board
Members Present:
Vice Chairman Lair Block, Robert Cassell, Charles McDarris, Robert Evans,
ALT, Catherine Heath, ETJ Board
Members Absent:
Chairman Gaines Weaver Town of Cary Council/Staff Present: JoAnne Carlyle; Planning Staff Members – Jennifer Currin and Shelley Kirk. 3.
Agenda: ADOPTED 5.
Minutes – April 9, 2007 Board of Adjustment meeting: APPROVED 6.
Hearing(s): APPLICATION:
07-A-03
Preliminary
Statement: Vice-Chair Block gave
a preliminary statement which summarized the issue and their request before the
board. TESTIMONY
and EVIDENCE: Ms.
Currin presented the Staff Report, by reviewing main points and describing the
applicant’s parcel information. Staff
also explained that there are topographic issues that exist on this parcel.
There is approximately 36’ from the furthest point of the principal
structure to where the slope begins. The grade changes approximately 13’ over
25.5 feet, which is about a 2:1 slope. Within Weldon Ridge, there are only a few
other lots affected by the topography change to this degree, including the ones
adjacent to the parcel in this request. The change in slope affecting the
Applicants’ property is not common to most of the parcels within the Weldon
Ridge subdivision. Additionally,
there are wetlands and two Best Management Practices (BMPs) located on the
property. The retaining wall would assist in reducing the erosion that is
occurring on this parcel. Currently, the LDO permits a wall up to 8’ in height
to be located in a setback. The
variance requested will not substantially alter the essential character of the
neighborhood since a wall up to 8’ feet is already permissible.
If the variance is granted to permit a retaining wall, the setback
requirements for the principal structure would still be required. Board
discussion: Ms
Heath wanted clarification on which other lot(s) are affected with this same
topography issue and how many. Ms.
Currin stated that staff had observed about five lots with similar topography in
this subdivision. Board members
compared applicants’ lot with lots 59, 63, and 65, as to size of lots and
house placements. The Board then
reviewed the plans for construction of the wall, as to its location and as it
relates to on-going erosion problems with this area near applicants lot.
There was further discussion of land stabilization, water run- and exact
wall height and footings to clarify, again, the total affect of applicant’s
request. The Applicant, Mr. Brown then
presented testimony in support of his request for the variance to build a
retaining wall. Mr. Brown provided
some history regarding the applicants’ decision to purchase this specific lot.
Applicant stated that he paid a lot premium to have this lot.
When he first looked at the vacant lot, he misunderstood the green
fencing that he saw in the back of the lot to mean the property ended at that
point. When he came back to look at
the lot after the foundation was laid and the true property line was visible,
the applicant stated he was very confused and upset as to why there was hardly
any yard after all. The applicant
stated that he then attempted to get out of the contract, but couldn’t because
of the 10% down payment he’d made already.
In talking with the contractor from that point on, we were encouraged to
build a retaining wall. Soon after
closing on the house in April 2007, the erosion issues began and in speaking
with many contractors, they all felt the retaining wall was the best answer.
The Applicant stated that
building the retaining wall only 8 feet high as addressed by the Board, without
the variance, would not provide a level lot and it really isn’t a big
difference in cost. Their objective
is to get the land as level as possible and to maximize the property value.
The height of the wall will be lower than neighbor’s level land; 13
feet below foundation of house as it is now; so, in the Applicants opinion, the
12 foot wall would be the best solution. Ms.
Heath inquired as to if Mr. Brown had seen the survey before signing the
contract and he stated that he had not. He
also stated that after paying $500 for a survey, the surveyor did not know about
the 8 foot limit and did not become aware of it until the permitting process had
started. Opposition or Rebuttal: None, the public hearing was closed. Discussions & Findings of Fact: Mr.
Cassell and Ms. Heath discussed the silt problem in North Carolina
and the severe erosion problem that
exists here. The whole bank somehow
needs to be stabilized and will only get worse in time.
Ms. Heath tried to obtain compelling reasons why the land can’t be
stabilized with an 8 foot verses 12 foot retaining wall.
There would definitely be a concern with the neighbors if the 8
foot wall shifts, theoretically. The
discussion went towards the possibility of a terrace situation would also
resolve applicant’s issues. Ms.
Heath’s concern of the wall capturing the water, not running down either side
to neighbors was sufficiently addressed. Mr.
Cassell asked the board if there was any harm in approving the request?
Vice-Chair Block restated the charge of the board was not this issue.
Ms. Heath continued the discussion involved “beneficial use of the
land” and is there a real “need” for a retaining wall, regardless of
height. Vice-Chair Block asked for motion to the board members with no response. Ms Heath began the motion to the facts and beneficial use of land had further discussion between Mr. Cassell and Vice-Chair Block. ACTION: Mr. McDarris 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 in accordance with the following: Findings of Fact: 1. The Application was filed by all of the owners of the land for which a variance is sought. 2. The Applicant took part in the pre-application conference required by Section 3.20.3(B). 3. The Property is: 4. The Property is in a
Planned Development District (PDD). 5. The property is
improved. If it is improved, the
improvement is: single family detached residence. 6. Minor modification
procedures were unable to address the hardship. 7. Homeowner’s
Association approval has been obtained and a copy is attached. 8. There are not written
zoning conditions or conditions that are part of a special use permit, a PDD
approval or a subdivision or site plan approval that will be varied by this
request 9. The variance requested
is a variance from Section 7.2.7 (B) of the LDO to
permit a wall or fence up to 12' in height in a rear setback. A copy of a
sketch of the proposed variance is attached. AND 10. Special circumstances or conditions exist that are not common to other areas or buildings that are similarly situated areas or buildings. a. There are topographic issues that exist on this parcel. There is approximately 36’ from the furthest point of the principal structure to where the slope begins. The grade changes approximately 13’ over 25.5 feet, which is about a 2:1 slope. Within Weldon Ridge, there are only a few other lots affected by the topography change to this degree, which were adjacent to the parcel in this request. This change in slope is not common to most of the parcels within the Weldon Ridge subdivision. 11. Practical difficulty may result from strict compliance with this Ordinance's standards.
a.
There cannot be any beneficial use of the property without the variance.
There is a detached single family dwelling unit which exists on the
parcel. However, about 25.5’ of the 62.5’ total length of the backyard has
approximately a 2:1 change in grade. The topography on this parcel prohibits any
use of the property where the slope occurs. b. The essential character of the neighborhood would not be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance. The essential character of the neighborhood would not be substantially altered and the adjoining properties would not suffer a substantial detriment as a result of the variance. Behind this parcel are wetlands and two Best Management Practices (BMPs). The retaining wall would assist in reducing the erosion that is occurring on this parcel. Currently, the LDO permits a wall up to 8’ in height to be located in a setback. The variance requested will not substantially alter the essential character of the neighborhood since a wall up to 8’ feet is already permissible. If the variance is granted to permit a retaining wall, the setback requirements for the principal structure would still be required. Therefore, there would be no further impact on the properties adjacent to this parcel.
c. The variance would not adversely affect the delivery of public
services such as water and sewer. The existing dwelling unit is served by water
and sewer. The variance would not
adversely affect the delivery of public services, such as water and sewer.
d. The applicant purchased the property with knowledge of the
requirement. The applicant indicated
on the sworn application that when they went under contact to purchase the
property, the applicant was not aware that the sloped portion of the lot was
included in the lot they had under contract.
e. The applicant's predicament could not be mitigated through some method
other than a variance. Staff
testified that according to LDO Section 7.2.7(B), the height of a fence or wall
within a setback cannot be exceeded unless specifically approved as part of a
buffer under Section 7.2.3, or approved by the Town Council as part of a site
plan, preliminary subdivision plat or Special Use Permit, or approved by the
Zoning Board of Adjustment as part of a variance. Since
the subdivision plan has already been approved, the lots have already been
platted and recorded; the applicant chose to apply for a variance through the
Zoning Board of Adjustment. The LDO does not provide for any other mechanism,
other than the one described above, to approve of a wall in a rear setback to
exceed 8 ft. in height. AND 12.
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 13.
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 for such conditions or situations. AND 14.
The variance represents the least deviation from the regulations that
will afford relief. SECOND/VOTE: Mr. Cassell seconded the
motion. There was a bit more
discussion as to the height of the fence that will go on top of the retaining
wall and what is acceptable per the ordinance.
After the Secretary called for the vote, the Board approved the motion,
including the Findings of Fact, to grant the Applicants’ request for the
Variance – 4-1. 8. Old
Business: By
Laws Revision still pending for Secretary’s action to create a “master’
document as requested by Chairman reflecting ALL staff changes and inputs.
New Business:
None. 10.
Adjournment: Vice-Chair
Block called for a motion of adjournment. Ms.
Heath made the motion to adjourn that was seconded by Mr. McDarris.
The Board adjourned at __________________________________________
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