minboa031302

TOWN OF EMERALD ISLE
MINUTES OF BOARD OF ADJUSTMENT
WEDNESDAY, MARCH 13, 2002 The Town of Emerald Isle Board of Adjustment was called to order by Chairman, Michael Johnson at 9:00 A.M. Members present: Michael Johnson, Jackie Getsinger, James Woolard, Joseph Quigley, and John McEnaney. Also attending, Secretary, Carol Angus, and James W. Taylor, Building Inspector.

The minutes of the regular meeting of February 13, 2002 were approved as written. Joseph Quigley made the motion to approve and John McEnaney seconded the motion with unanimous approval in favor of the motion.

Variance request, # 02-09, Chadwick Bible to rear setback at 109 Lobster Lane, Lands End, Block 49, Lot 134 to allow enclosure of an existing open deck for a screen porch.

Mr. Bible was sworn in by Secretary Angus. Mr. Bible then presented his appeal for having his building permit denied by the Inspections Department. He stated that he and his wife have moved to Emerald Isle on a full-time basis after moving from Raleigh recently. Mr. Bible requested a variance be granted to allow him to build a screened enclosure over a portion of an existing deck within the 15 ft back set back.

(A) There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. The courts have developed three rules to determine whether in a particular situation “practical difficulties or unnecessary hardships” exist. State facts and arguments in support of each of the following:

(1) If he complies with the provisions of the ordinance, the property owner can secure no reasonable return from or make no reasonable use of his property.

“If we comply with the setback rule (15’ from back lot line) we will not be able to

utilize and enjoy our back deck during the mosquito season.

(2) The hardship of which the applicant complains results from unique circumstances

related to the applicant’s land.

“If we cannot build a screen porch over a portion of our existing deck, then we will not be able to utilize our deck most of the year.”

(3) The hardship is not the result of the applicant’s own actions.

“Since we live next to a pond owned by Lands End, we cannot control the bugs associated with the pond and cannot enjoy our deck.

B. The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit.

“The addition of the screened area over the existing deck will not further encroach upon the Lands End property (pond)!”

C. The granting of the variance secures the public safety and welfare and does substantial justice.

“If this variance is not granted, we will suffer the loss of enjoyment of our property and the public will gain nothing.”

Mr. Bible had submitted a letter from the Lands End Homeowners Association that they did not object to this proposal. He had also submitted a detailed drawing of the completed project.

Mr. Bible advised that because of the pond to the rear of their property that is common area, the closest neighbor is about 100 feet from where he is asking for the variance.

Chairman Johnson said that from the survey it seems that the pond itself did not extend into Mr. Bible’s property. The high water, as it exists this date, seems to be at about the rear property line.

Mr. Woolard asked about the construction of the deck as it exists into the setback. James Taylor replied that there is no permitting activity on the decking. So the deck must have been built after the house was built without a permit, or the contractor finished the deck after foundation certification was submitted and the encroachment was not noted.

Mr. Quigley asked if any encroachments were permitted. Mr. Taylor advised that a 3’ encroachment is permitted into any setback with an uncovered deck or stairway. When it is covered the setback must be met.

Mr. Quigley then asked what type of screening will be used. Mr. Bible said it would be fiberglass screening. He would have to abide by any code requirements to comply with the extra weight load.

Mr. Quigley was concerned about the possibility of this porch being made into a glassed in enclosure used for living space. Mr. Bible said he has a sun room now, and there is no intention of enclosing this area.

Mr. Woolard asked for additional clarification of the original house construction. Mr. Taylor said the back deck was not shown on the house plan in 1994. Therefore, it is an assumption that the deck, being built without a permit, was built into the setback.

There were no further questions from the board and Chairman Johnson advised Mr. Bible of the requirement for a 4/5 majority necessary for the variance to be granted. He called for a written vote. Ballots were distributed.

The vote was unanimous in favor of granting the variance.

The rationale for granting the variance are as follows:

Mr. Quigley said they did grant one a few months ago on one of the key hole lots where someone was building next to a walkway access. He felt that this request will not impinge into anything. He understands that the Inspections Department has to enforce the rules, but in this case it seems that the setbacks are there for right-of-way and to help neighbors. There will still be quite a bit of distance.

Lands End had no objections.

Ms. Getsinger said she granted because of where the lot was located. It did not bother any other neighbor as she walked around and looked at the property. She knows how mosquitoes are so to give them use of their land. They are permanent residents she decided that they need to use it, even if it is non conforming without their knowledge. The homeowners association did not object.

Chairman Johnson voted to grant, and concurred with what had been stated. The encroachment is not being made any worse other than putting a roof over it. There is plenty of separation between other structures. It should be aesthetically pleasing since they must deal with the homeowners association for approval. The intent of the setback is to maintain fire separation and public welfare and safety.

Mr. Woolard said he also voted to grant the variance because it will be present-able, no problem with the homeowners association, and encroachment was done without the owner’s knowledge and will not enlarge the encroachment.

Mr. McEnaney concurred with the previous comments, however, his specific comments were not audible for transcription.

Variance #02-10, requested by William DeSoto, to the side setback at 7327 Archers Creek Drive, Block 32, Lot 2G, to allow installation of an elevator.

Michael Lincoln, attorney for Mr. DeSoto, spoke on his behalf.

Mr. Lincoln advised that Mr. DeSoto was injured in WWII with shrapnel in his back, which has brought on traumatic arthritis which affects his walking. He was also wounded in Viet Nam with Delta Force when he was a Sgt. Major with a shattered left elbow which affects his balance and ability to walk.

When the DeSoto’s came to Emerald Isle in 1991 his disability had not progressed to the state it is today. Presently he is at tremendous risk going up and down the stairs. As far as the elements are concerned, per the application Mr. Lincoln said the least intrusive place for the elevator will be the west side. Since the town allows intrusions of decks and stairs up to 3’, he would correlate this request to that allowance. It serves the same purpose and allows access. Mr. DeSoto will be in a wheel chair in a year or two. Both Mr. and Mrs. DeSoto are on a fixed income and cannot afford to move. The cost of the elevator being installed is the best way to go, to stay in the house.

Based on the fact he has a disability and is unable to ambulate and the lot size being so compressed by the side setbacks, this is really a diminimous request of less than 3 feet to put this elevator in. It’s the same as a deck, just covered for access. A lot of builders in the past have done a lot of encroachments and he has done a lot of closings in Emerald Isle that he is aware of and some considerably more than 3 feet.

Mr. Lincoln went on to add the effect on the neighborhood would be minimal. There would be no ill effect to neighbors and would enhance the value of the house and the neighborhood.

The purpose of a variance is to avoid the strict application of the rules to avoid a obvious injustice. In this situation, a 2.8’ intrusion into a side set back is diminimous and the fact there is a physical disability. If you take the competing equities as a quasi-judicial body, what they are asking is for relief to be able to stay in Emerald Isle and stay in that house.

Ms. Getsinger said she felt the creek is a hardship with the contour of the land.

Chairman Johnson said he felt that the way the houses are offset, 2.8 feet into any sideline is barely going to close the distance between the houses at all.

Mr. McEnaney asked if Mr. DeSoto would drive under the house to access the elevator? He was advised he would go under the house.

Mr. Quigley asked for the reason to place the elevator where it is proposed as opposed to the north or south of the property. Mr. Lincoln said it would be two to three times the cost and it works better with the placement for the inside of the residence.

Mr. Quigley then asked about access and egress for emergency medical assistance. Mr. Lincoln said the elevator car is of sufficient size to accommodate such a need.

Chairman Johnson then asked for a written ballot, which were distributed.

The vote was unanimous in favor of granting the variance.

The rationale for this decision, is as follows:

Mr. McEnaney said he did vote to grant the variance because he did not think you could put an elevator on the north or south side. He saw Ms. DeSoto in the kitchen when he visited the site and felt that the most logical place for the elevator. He also considered Mr. DeSoto’s disability.

Mr. Woolard voted to grant the variance after looking at the amount of encroach-ment, he did not think there was any way it took away from anyone. To grant such a variance for what Mr. DeSoto has been through and what he will continue to go through it was the least he (Mr. Woolard) could do.

Chairman Johnson agreed to grant the variance. It was minimal and as far as they are from the neighbor on the west side, substantial justice is done.

Ms. Getsinger said she felt the contour of the land (contributed) they are permanent residents and have need for the elevator. It should bother nobody and still meet requirements for fire and rescue.

Mr. Quigley said this is a hardship and secures safety and welfare, he had no problem.

Interpretation and possible action on a request by Carol Angus, Zoning Official, to allow rear setback requirements to set to 15’ for lots 26 and 27 in Shorewood Subdivision and set aside the required 30’ rear setback.

Ms. Angus asked that this item be withdrawn. After she had done further research on these properties it was found that those properties developed to date had met the 30’ setback both from rear and front. Therefore, there is no reason to pursue this request.

Mr. McEnaney said he appreciated what Ms. Angus saw to be a problem and acted on it right away. Then continued to get more information and presented it to the board. He thinks that one of the things we suffer from is not being told early enough about issues. You can always retract it, but once it’s over, it’s too late. He thanked Ms. Angus.

Ms. Angus apologized for having put it on the agenda before doing further research, but she wanted to have it addressed and the time frame for the agenda and advertising was close and research takes a while into archiving. Also, she had received letters from those parties who had conformed to the setbacks, and they were opposed to the change.

Chairman Johnson agreed, that things need to be looked at before they are locked in concrete.

Mr. Quigley also commended the Inspections Dept. for the job they do. It means the board has to handle a lot of variances, but the department is doing their job.

Motion to adjourn was made by Joseph Quigley, second by Jackie Getsinger, with unanimous approval in favor of the motion.

9:37 A.M.

Submitted by:

Carol Angus, Secretary
Town of Emerald Isle
Board of Adjustment