March 8, 2000

Board of Adjustment

TOWN OF EMERALD ISLE

BOARD OF ADJUSTMENT MEETING

WEDNESDAY, MARCH 08, 2000

Chairman, Michael Johnson, called the meeting to order at 9:00 A.M..

Members in attendance: Michael Johnson, KevinViverette, Dorothy Marks, Jim Woolard and Joseph Quigley. Jackie Getsinger was out of town, not able to attend.

Mayor Barbara Harris swore in Mr. Joseph Quigley as new member to replace an absence created by Mr. Roy Brownlow who had been appointed to the Planning Board.

NEW BUSINESS:

  • Case # 0001 Ronnie Watson, requests a variance to erect a singe family residence on lot 48, 8721 Plantation Drive.

    This lot was originally platted for the patio home phase of the subdivision which was to be hooked into the sewage treatment plant and the square footage of the property was in compliance with that portion of the ordinance. However, when it was discovered that the lot could not be hooked into the sewage treatment plant, the request to build the home on the lot with a septic tank permit could not be permitted because the lot did not qualify for the 12,500 sq. ft. necessary for a lot created since June 11, 1977. This lot has 11, 489 square feet.

    Mr. Watson was out of town and was represented by Mr. Steve Matthews and Mr. Kenji Horn and were sworn in by Secretary, Carol Angus.

    Chairman Johnson, asked Mr. Matthews to present the evidence to be entered into the record.

Portion of Town of Emerald Isle Ordinance to prohibit use of the property.

Section 19-102 (1) Minimum lot area -- Seven thousand square feet for lots of Record prior to June 11, 1977, and for which a single-family dwelling is proposed; twelve thousand five hundred square feet for lots recorded after June 11, 1977.

Factors Relevant to the Issuance of a Variance

The Board of Adjustment does not have unlimited discretion in deciding whether to grant a variance. Under the state enabling act, the Board is required to reach three conclusions before it may issue a variance: (a) that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance; (b) that the variance is in harmony with the general purposes and intent of the ordinance and preserves its spirit; and (c) that in granting the variance, the public safety and welfare have been assured and substantial justice has been done. In the spaces provided below, indicate the facts that you intend to show and the arguments that you intend to make to convince the Board that it can properly reach these three required conclusions.

  1. (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.

    Property has not been approved to hook up to the existing sewer system.

    (2) The hardship of which the applicant complains results from unique circumstances related to the applicant’s land.

    It is a unique circumstance in that the property has not been approved for the septic.

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

    (the) system due to the fault of the utility company.

    Preserves its spirit.

    There are many other septic tanks being utilized in Emerald Plantation and it does not

    Detract from the character of the neighborhood.

    1. 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:
    2. The variance is in harmony with the general purpose and intent of the ordinance and
    3. The granting of the variance secures the public safety and welfare and does substantial justice.

      Granting of the variance would in no way be detrimental to public safety and welfare.

      Mr. Matthews brought the members up to date regarding the lots in this section of the subdivision that were left off the sewer system when it was installed. It was believed from the beginning that these lots were included in the system. These lots are patio-sized lots, smaller than R-2 zoning. Therefore, when he came to obtain a building permit it must be denied due to the shortage in square footage of the property. By current regulations, 12,500 square feet is required for a single-family dwelling and this lot has 11,489 square feet. He has been able to obtain a septic tank permit from the Health Dept.

      Mr. Matthews went on to say it was not the fault of this property owner, to create his own hardship, he was under the assumption that the system was available to this lot. Some of the lots were able to hook on; others could not and have been able to get a variance to build a single-family residence.

      Ms. Marks said the first variance she remembered here, there were 11 lots affected. Mr. Matthews agreed, and now all but four have been approved for the existing sewer system. She reiterated that the previous variances were with the condition that when the sewer system came on line, that these homes would abandon their septic tank. Mr. Matthews again agreed, and said that the County Health Dept. also makes this stipulation. He further stated that if the variance were to be granted that they intend to lay all the pipes necessary to do this future hookup.

      Chairman Johnson asked about the history of the utility company. Mr. Matthews replied it was paid for by the developers and then given to Fritt Environmental the first year after development. It stated all lines were to be running to all properties.

      Somehow, these lots were not included, no one knows how it happened. There is a loop road around the clubhouse and the lines are to run under the road, but these are not there. He does not know what the problem is, and no one can answer that.

      Chairman Johnson said he heard the problem is with the lift station and will cost about $35,000 to put in the lift station. Mr. Matthews said when the County put the moratorium on the Emerald Plantation for no more building permits. They went to the utilities company, got them out, and saw that the manholes are there in front of the lots. Utilities company said o.k., hook into it, but the county said it was not approved so it could not happen. It looks ready to go, but it’s not there.

      He understands that the utilities company has said they are going to install the lift station and do what the health department says needs to be done.

      Chairman Johnson added that the former applicants appearing before this board had purchased their lots under the assumption that these lots were ready to be built upon. When they got ready to build, they couldn’t hook into the system and could make no reasonable use of their lot without a variance to allow a septic system to be installed. In this situation, it’s the developers problem through oversight of the system.

      Mr. Matthews then remarked the original intent was to have 16 townhouses in this phase, then revised to 11 patio home lots, which is a lesser density than originally planned. You would think if they approved 16 townhouses that 11 houses would be approved. This is not something that the developers did, it was thought to be installed.

      Chairman Johnson said he felt that if someone came up with the $35,000 the lift station could be taken care of and these homes included. Mr. Matthews said he thought that was correct, and the utilities company has agreed to do so and are working on the engineering.

      Mr. Quigley stated that he understood that the request for variance is because the square footage of the property. Mr. Matthews told me that all these lots are patio lots, they are approved as group housing and are to be hooked to a sewer system not requiring the additional square footage for septic systems.

      Mr. Johnson agreed with Mr. Matthews, these lots approved after the June 11, 1977 regulation requiring 12,500 square feet were only because of the use of the patio home lots.

      Mr. Quigley asked then if it is a question of money? Either do the septic system or $35,000 for the sewer system? Mr. Johnson agreed.

      Mr. Johnson asked when the reduction was made from 16 townhouses to 11 patio lots? Ms. Angus said she thought it was about 1993 (later corrected to 1987).

      Mr. Matthews said when the change came about (1987) that all the lots could hook into the system.

      Ms. Marks asked how many more lots will be before this board. Mr. Matthews said there were four lots not approved for the system. Two have a variance, this one being requested, which will leave one additional lot that cannot hook on.

      Ms. Marks asked who owns the open area north of this property. Mr. Matthews

      advised that it is common area owned by the homeowners association. She

      that area might be added to this lot and give it the required square footage for

      construction. Mr. Matthews doubted that would be possible.

      Mr. Kenji Horn advised the board to refer to the septic tank permit issued by the health department that the stipulation is that when the system is available for hookup, that this property must abandon the tank and make the hookup.

      Mr. Woolard asked if there may be an attempt on the part of the utility owner to stall this upgrade and there is an ongoing attempt to facilitate the sewer plant?

      Mr. Matthews said there is an ongoing attempt to upgrade the system.

      Mr. Viverette asked if Mr. Matthews anticipated any action anytime soon? Mr. Matthews said he did not know. Ms. Angus said she has been waiting for the upgrade since 1994.

      Mr. Johnson said there would be no urgency to upgrade the system once each lot has a septic system. Mr. Matthews said there were other complications with this utility other than these patio lots.

      Mr. Quigley asked if this lot is owned by the original developer. Mr. Matthews said it is, but they did not know the system was not installed for this lot.

      Ms. Marks asked the cost of the septic tank for this lot and was advised it would be a cost of $2,300.00.

      Mr. Quigley said the Planning Board had already allowed the exception to the lot size based upon the assumption that the sewer system would be there. Now you ask for a further exception which seems to go against what the intent of the ordinance is.

      Ms. Marks asked if a patio home would be built on the lot, with the zero lot line?

      Mr. Matthews said it would be, however, this lot has no zero lot line because it adjoins the town required access to the sound and must maintain a 15’ side setback as well as the adjoining lot.

      Chairman Johnson then asked for a written vote. The votes then counted and Mr. Johnson stated the request for variance was denied because a 4/5 majority is required and the vote was 3 to grant and 2 to deny. The rationale for this decision is as follows:

       

      The Findings of Fact were as follows:

      Mr. James Woolard voted to grant the variance based on past actions; it would not be detrimental to the neighborhood to have a septic system on the lot. There is such a minor shortfall of the square footage requirement. The failure of the utility company to upgrade the sewage plant system was not the fault of the party making the request.

      Mr. Kevin Viverette voted to grant the variance based on past actions; it is a temporary solution, because as soon as the treatment plant is upgraded it would be a requirement to have this property hook to the system. The square footage of the property is a few square feet and would not be detrimental.

      Mr. Michael Johnson voted to grant the variance. He felt this case was a little different that the former cases. Through oversight of the utility company it could have been handled as planned. There is minimal square footage to meet the current requirement.

      Mr. Joseph Quigley voted to deny the variance. He felt the plans had been approved through the Planning Board that the sewer system would be installed for that area. If the property owners cannot get the necessary repairs, then who can? Perhaps the homeowners can get the impetus to get the repairs done. The first requirement is be that the unnecessary hardship is not the result of the applicant. He is not satisfied as to why the sewage system cannot be extended to these lots when other lots have been added.

      He stated to that the request is for a variance, not a conditional use. The condition being here, that once the sewer system is upgraded it would be hooked on.

      Dorothy Marks voted to deny the variance. The hardship must be of unique circumstance, and it is not. There are several other properties with the same problem. If we approve this one we will have to approve the next and the next.

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

Posted by The Town of Emerald Isle 03/08/2000

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