minboa061103

Draft
Town of Emerald Isle
Minutes of Regular Board of Adjustment
Wednesday, June 11, 2003

The meeting was called to order by Chairman Johnson at 9:00 AM. Members present were:

Michael Johnson, Mark Brennesholtz, Winton Smithwick, Russell Adams and Kathy Koren.

Carol Angus, Secretary was also in attendance.

Chairman Johnson welcomed Ms. Koren as a new member to the board.

Case #03-18 – Pete Cochran, 10010 Coast Guard Road, Deer Run Bluffs, S/D, Lot 2, Block 49 North. Variance request to extend pier into Bogue Sound beyond 400’ as limited by Town of Emerald Isle Codification Sec. 6-84 (c) which states: Maximum length of pier shall be one hundred (100) feet from the high water mark, unless permitted by the Coastal Area Management Agency district office; however, not to exceed four hundred (400) feet, including any “T” or “L” additions and, the “T” or “L” platform not to exceed two hundred square feet.

Mr. Cochran was sworn in by Ms. Angus, and asked to make his presentation to the members. The following is taken from application for evidence:

I, Pete Cochran, hereby petition the Board of Adjustment for a VARIANCE from the literal provisions of the TOWN OF EMERALD ISLE, NC Zoning Ordinance because, under the interpretation given to me by the Zoning Enforcement Officer, I am prohibited from using the parcel of land described in the attached form in a manner shown by the plot plan attached to that form. I request a variance from the following provisions of the ordinance (Section: 6-84(c) ) Owner has all major CAMA permits to build pier

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:

To develop homeowners property to it’s full value a pier would be needed.

(2) The hardship of which the applicant complains results from unique circumstances related to the applicant’s land. (Note: Hardships suffered by the applicant in common with his neighbors do not justify a variance. Also, unique personal or family hardships are irrelevant, since a variance, if granted, runs with the land. (No response)

(3) The hardship is not the result of the applicant’s own actions. Property owner did not create this hardship, mother nature did.

B. The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. (State facts and arguments to show that the variance requested represents the least possible deviation from the letter of the ordinance that will allow a reasonable use of the land and that use of the property, if the variance is granted, will not substantially detract from the character of the neighborhood. Owner adjacent do not mind the pier

C. The granting of the variance secures the public safety and welfare and does substantial justice. (State facts and arguments to show that, on balance, if the variance is denied, the benefit to the public will be substantially outweighed by the harm suffered by the applicant.) If denied, property would not reach it’s full value.

Mr. Cochran added that it is still not final as to how far the pier will extend, he and Mr. Taylor, Building Inspector, had met on site and determined at about 525 feet. When he bought the property in 1997, the intentions were to build a single-family home and try to acquire additional lots, beginning with 1 and 2, Bluff Ridge, now acquiring lot 3. He would like to have the same privileges that others has on Bogue Sound for the recreational capabilities

He feels the hardship is not something he created, mother nature did this. Neighbors, the Watsons and Palmers have not objected. If the variance is denied the property would not reach it’s full potential value. That is a personal observation.

The ordinance is written to protect boaters from having piers in the navigable waters. One adjustment was made when it was 200 feet. If you look at all the property on Emerald Isle the first properties taken were not necessarily deep water. They were lots that were suitable at the time for what people were willing to spend to buy a lot. When they bought these lots they only had to go 100 to 200 feet to hit water. As the town developed the lots started getting longer, the piers longer so the ordinance had to be changed. When you get to the west end of the town, that’s the only land left. Those properties are not of any less value than the east end. The tax value of anything touching water is $150,000. He is being accessed the same tax value as someone on the east end who has his pier whether it is 200 or 400 feet. The original plan for Deer Run Bluffs was to establish a pier and boat slips between lots 2 and 3 on an easement that has been dedicated. The pier was to extend out to navigable waters. However, this common pier has not happened. The original plan was to allow Lands End property owners access to this pier as a tradeoff for Deer Run Bluff owners to use the oceanfront facilities in Lands End. Six of the Deer Run Bluff lots are owned by himself and Cary Harrison, with four other lots all in trust. He and Mr. Harrison want to try to buy all of those trust lots and not develop them, but keep them in their current stage.

He has a 971’ pier on the west side at Pointe Bogue, Mr. Harrison’s pier is 432 feet long. Mr. Cochran has a CAMA Major permit in hand to authorize construction of a pier and home and wetland mitigation on the 12 acres of property which is about a $10,000 investment.

There were no piers destroyed in hurricanes during past seven years some may have warped but did not fall apart. The east end fell apart because they were developed so long ago and the technology of construction has improved since 20 years ago.

He understands that the piers too close together will cause damage to an adjoining pier, but in his case that cannot happen because they are more than 500 feet away. The plan is designed to go out about 250’ at a 10 degree heading east, then turn 10 degrees west. So it will not be a straight pier, but a walkway that is nice.

With the CAMA Major Permit in hand he had no idea that the town has an ordinance that was more restrictive and could prohibit him from building his pier. So he was advised to come to the Board of Adjustment after going through the process of addressing the issue to the Planning Board. The planning board decided to let it go to the Board of Adjustment.

Mr. Smithwick asked about the piers that are now in place that Mr. Cochran mentioned and was advised that they were built prior to the enactment of the 400’ limit.

Chairman agreed with Mr. Cochran that the intent is to keep the piers in line so navigable water is not obstructed. Since the distance is so far apart in this area, keeping them in line with what he has proposed should not be a problem. There is also the concern to protect the marsh area from being disturbed.

Mr. Taylor, Local CAMA Permit Officer, and Building Inspector, advised that he felt Mr. Cochran’s proposal would save the marsh species as well as allow him access to deeper water. The same issue is going to present itself with the West End S/D at the point area.

Mr. Cochran said he felt that the neighbors would probably not build a pier because it would have to be close to 1,000’ and maybe up to $70,000.

Mr. Adams said he felt it would be better if the ordinance was changed to 600’ or to what CAMA prescribes rather than have every individual come in for a variance.

Ms. Angus said the planning board was reluctant because of giving such a length which would have to apply to everybody, the town has no layover districts.

Mr. Smithwick asked Mr. Cochran what dimension he was asking to be permitted and Mr. Cochran replied that it would be whatever length the Major CAMA Permit would specify, up to 600 feet because of the dog-leg being implemented or until marsh plus 20 feet meets water. High tide is at about 3’, so a flat bottom skiff will work.

The dog-leg will allow the pier to collapse into itself in the event of a disastrous storm.

Mr. Cochran illustrated on the maps all of the properties that he owns in this subdivision and the proximity of putting the pier in another location would be even longer. IT took over a year to get the CAMA Major permit due, in part, to the destruction from the pine beetles after the 1996 hurricanes. There used to be tremendous vegetation that is now gone. The hardwoods were not so affected.

Mr. Brennesholtz said he was struggling with the intention or the rationale for the 400 feet. Mr. Taylor said that this had originally been stated so that those persons in the Marsh Cove area could reach water, limiting it to 400’, not realizing that there might be a greater potential problem at the west end.

Mr. Russell said he thought a Special Use might handle this problem and with a Major CAMA Permit in hand.

Mr. Russell asked Mr. Cochran if he felt that the only hardship was not being able to get full value out of the property. Mr. Cochran replied that the dollar value is not important, being able to use the property the way he would like to use it is more important. To have a pier, take the boat and the kids out and about and have total water access.

Motion was then made to grant Mr. Cochran a variance based on the dimensions permitted by the N.C. Coastal Area Management Agency (CAMA) Permit being 600 feet. The written ballot was then received and the variance was denied by a 3/2 majority, requiring a 4/5 majority to grant a variance.

Rationale for the vote:

Mr. Smithwick voted to grant the variance because the owner of a soundfront property should be able to get to water, not to trudge through the grasses;

Mr. Brennesholtz vote to grant the variance solely because Mr. Cochran had acquired the property prior to the adoption of the ordinance to restrict length.

This is an issue that should be taken to the Planning Board and amended.

Chairman Johnson voted to grant the variance, he believes the ordinance is a poor piece of zoning and should be amended that didn’t take into account a lot of properties when it was adopted.

Russell Adams voted to deny the variance that he feels this request does not meet the criteria to grant a variance. It might be handled through an amendment to the ordinance or as a Special Use.

Kathy Koren voted to deny the variance stating that there is a lot of property on the island that owners don’t get to use to their full value. She does not see it as a hardship because there is reasonable use of the lot now. It is a beautiful piece of property that has sound view, but not sound access. She felt the Planning Board should amend the ordinance to meet this type circumstance.

Case 03-19 Ronald and Linda Ham, 2804 Emerald Drive, Block 14, Lot 1 request a variance to erect dwelling on portions of the lot that does not have the required 75’ width at the building line. Sec. 19-101(4) Minimum required lot width at front setback line.

Following are the responses that were submitted at the time of application:

I, Ronald and Linda Ham (and others), hereby petition the Board of Adjustment for a VARIANCE from the literal provisions of the TOWN OF EMERALD ISLE, NC Zoning Ordinance because, under the interpretation given to me by the Zoning Enforcement Officer, I am prohibited from using the parcel of land described in the attached form in a manner shown by the plot plan attached to that form. I request a variance from the following provisions of the ordinance (Section 19-101(b)): Minimum required lot width at front building line – seventy five (75) feet.

so that the above mentioned property can be used in a manner indicated by the plot plan attached to the General Application form or, if the plot plan does not adequately reveal the nature of the variance, as more fully described herein: Applicant desires to build a single-family dwelling in area where front building line is a width of 74.4 feet. Applicant desires to place front building line 40 feet from the mean high water mark.

(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. (It is not sufficient that failure to grant the variance simply makes the property less valuable.) We feel there are practical difficulties and we ask for any consideration you can give to us to build our dwelling.

(3) The hardship is not the result of the applicant’s own actions. Applicants purchased this lot from the subdivider. Lot dimensions have not been changed.

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

(State facts and arguments to show that, on balance, if the variance is denied, the benefit to the public will be substantially outweighed by the harm suffered by the applicant. A variance of .6 feet is greatly outweighed by the harm of requiring applicants to build a dwelling in a position inconsistent with the surrounding properties.

Mr. Ronald Ham, being previously sworn, presented his request to the board. He advised that he and Mrs. Ham and their children had purchased the lot in January to erect a single-family dwelling on the site. The lot runs from Emerald Drive to the sound approximately 450’. The lot is 75’ wide at each end of the property; however it narrows to 74.4’ toward the center of the lot.

The surveyor placed the minimum building line at about 240’ from the sound to meet the 75’ width at the building line requirement. There are three soundfront lots in this subdivision and the other two set about 40’ from the high water mark. He would like to build their house in line with those homes. On the west side is the electrical sub station, so that setting the house more to the soundfront it would be out of line with the towers and buildings from the sub station.

Mr. Ham went on to advise that he has five grandchildren that would be better guarded if they were able to be closer to the water. There was some confusion with differing opinions on whether the lot would be buildable where they wanted to place the residence. It is 6/10 of a foot shy of the 75’ requirement. There won’t be anything on the west side of the lot since it belongs to the electrical corporation; and no one he has talked to objects to the proposal.

The written vote was unanimous to grant the variance to the building width.

Consensus of rationale for granting the variance was that there would be no detrimental effect of the minimal variance and that the configuration of the property had created a hardship for the most practical use of the property.

Meeting was adjourned.

Respectfully submitted by

Carol Angus, Secretary
Town of Emerald Isle Board of Adjustment