BOARD of Adjustment Special Meeting * PD Community Room June 20, 6:00 PM

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1 BOARD of Adjustment Special Meeting * PD Community Room June 20, 6:00 PM A. CALL TO ORDER B. DETERMINATION OF QUORUM C. APPROVAL OF AGENDA D. APPROVAL OF MINUTES 1. Review and Approval of the Minutes from the May 18, 2017 Special Meeting BOA Minutes Draft Combined E. BUSINESS 1. VAR is a request by Emmett Quaine, for a variance from Section 9.20 Accessory Structures of the Waxhaw UDO (Unified Development Ordinance) to reduce the required 8 foot separation distance between the principal building and an accessory structure in the R-3 zoning district. The property is located at 2603 Holmview Street (tax parcel # ) and is zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). VAR Pool Variance Combined 2. Schedule Next Board of Adjustment Meeting F. ADJOURNMENT Town Hall, 1150 North Broome Street, Waxhaw, NC Page 1 of 37

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3 May 18, 2017 Board of Adjustment Special Called Meeting Waxhaw Police Department Community Meeting Room, 6:30 pm Special Called Board Meeting 1. Call to Order The meeting was called to order at 6:00 PM by acting Chairman Michael Downing. 2. Oath of Office NONE 3. Election of Officers A. Chair Tracy Wesolek motioned to nominate Michael Downing as Board of Adjustment Chairman. Art Meyer seconded. The motion passed unanimously, (5-0). B. Vice-Chair Chairman Michael Downing motioned to nominate Tracy Wesolek as Vice-Chairman. Art Meyer seconded. The motion passed unanimously, (5-0). 4. Roll Call and Determination of Quorum A roll call and determination of quorum were made. Present: Chairman Michael Downing, Vice-Chairman Tracey Wesolek, Art Meyer, Stacey Vinson, Bob Dussinger, Staff McCarter, Staff Jones, and Interim Recording Secretary Oliver. Absent: None 5. New Business A. BOA Training Conducted by Bill Duston of N-Focus Consulting Firm. A few of the topics to include: Bill Dustin Opened up the training saying that it was a lot of material to go over but that he would make it as entertaining as possible and asked everyone to please ask questions when needed. (See attached presentation). a. What does quasi-judicial mean? Draft 1 Page 3 of 37

4 Bill Duston stated that a quasi-judicial hearing is not like most Board of Commissioners meetings. The Board of Commissioners typically acts in a legislative manager where open discussion can be held between the Board and the applicant. The Board of Adjustment acts in a quasi-judicial manner where the Board of Adjustment acts like judge and jury and hold evidentiary hearings where only swore testimony is allowed. b. The role of the BOA and how it differs from that of the Planning Board and the governing board; The Board of Adjustment hears variances and appeals. The Board of Adjustment makes the final decision and appeals to a Board of Adjustment decision does not go to the town Board of Commissioners but rather appeals must be heard by a superior court. There are two types of variances: a general variance and a Flood Plain Overlay variance. A variance requires a 4/5 super majority vote to be approved. Bill Duston went over the four findings of fact that are required to be found in the affirmative in order to approve a variance. These findings are required by the State of North Carolina General Statutes. Bill Duston went over the three flood plain findings of fact. The flood plain variance findings of fact are unique to the Town of Waxhaw and not prescribed by the state. Bill Duston stated that the third finding of fact may need expert testimony because it is technical in nature. Draft Bill Duston went over the types of variances that are illegal. Use variances are illegal in North Carolina. Bill Duston went over the appeals process. The Board of Adjustment hears appeals to the decisions from the Zoning Administrator. In order to hear an appeal the decision must be final and it has to be in writing. Bill Duston explained constructive notice that can be used by a property owner to notify the public of zoning decisions. Constructive notice uses a sign posted by the property owner to let the public know that a decision has been made regarding the property. Appeals can affirm, modify, or reject the decision of the zoning administrator. Applications for appeals go to the Town Clerk rather than the Zoning Administrator to avoid conflicts of interests. 2 Page 4 of 37

5 Bill Duston went over expedited hearings and explained that if an expedited hearing is requested that the hearing must be held within 15 days. An appeal only requires a simple majority of a 3/5 vote to be approved. c. The BOA s Rules of Procedure; The Rules of Procedure for the Board of Adjustment are adopted by the Board of Adjustment and those rules must be followed. d. How BOA meetings and public hearings should be conducted; Bill Duston went over quasi-judicial hearings and emphasized that they are used to collect evidence and not to gauge popularity. He remarked that all motions for the findings of fact must be explained.the explanation has to include the reasoning of why the Board of Adjustment voted the way they did. Bill Duston went over his 12 step process for holding a quasi-judicial hearing. He went over who has standing to apply for a variance or an appeal. Examples of who have standing to appeal a Board of Adjustment decision are a Home Owners Association or the Board of Commissioner has standing to the decision of the Board of Adjustment. Draft Bill Duston went over conflicts of interests. Both what was covered by the North Carolina General Statues and what is covered by the Rules of Procedure in regards to conflicts of interest. Bill Duston went over the difference between evidence verses confident evidence and evidence verses hearsay. e. Findings that the BOA must consider in making decisions; Bill Duston went over fair and reasonable conditions. He made a point that you should always state for the record why you are suggesting a condition that was not suggested by the applicant. Bill Duston stated that the Rules of Procedure did not explicitly state whether or not the Chairman can vote on procedural motions or if they can make or second motions. 3 Page 5 of 37

6 A final decision must be rendered within 31 days of the close of the public hearing. Bill Duston stated that the Board of Adjustment must go through each of the findings of fact even if one was not approved. f. Voting and what constitutes a majority; A variance requires a 4/5 super majority vote to be approved and an appeal requires a simple 3/5 majority vote to be approved. g. Conflicts of interest and recusals; and the Town s other land use plan and other planning related documents and how they come into play when making decisions. Conflicts of interest are covered by the North Carolina General Statues and by the Rules of Procedure of the Board of Adjustment. 6. Minutes for correction and approval: March 1, 2016 Special Called Meeting Art Meyer stated that some of the statements in the minutes were incorrectly attributed to Anthony Marquart rather than to him. He pointed out each of the instances. Tracy Wesolek made a motion to approve the March 1, 2016 meeting minutes as amended. Art Meyer seconded. The motion passed unanimously, (5-0). Staff McCarter stated that staff had some town maps to hand out. 7. Adjournment Michael Downing motioned to adjourn the meeting at 7:53 pm. Tracy Wesolek seconded. The motion passed unanimously, (5-0). The meeting was adjourned at 7:53 pm. Draft 4 Page 6 of 37

7 Respectfully Submitted, Chairman, Michael Downing Recording Secretary, Maxx Oliver Draft 5 Page 7 of 37

8 Training Waxhaw Board of Adjustment May 18, 2017 TOPICS TO BE DISCUSSED What does quasi-judicial mean? Who holds q-j hearings? What is a variance? Required Findings What is an appeal? Rules of Procedure How to Conduct a Hearing Hearsay and evidence What is a BOA majority? Conflict of Interest/Recusals Making Decisions 1 2 SO WHAT DOES QUASI-JUDICIAL MEAN? qua si-ju di cial [kwey-zahy-joo-dish-uhl, kwey-sahy-, kwah-see-, -zeeadjective noting, pertaining to, or exercising powers or functions that resemble those of a court or a judge: a quasijudicial agency. SOURCE: Dictionary.com MEMBERSHIP Five (5) regular members; Two (2) alternate members; All members appointed by Town Board; Three (3) year staggered terms; Chair and Vice-Chair are elected by BOA membership. NOTE: ROP ARE SILENT AS TO HOW LONG THEIR TERMS ARE. THIS SHOULD BE ADDRESSED. 3 4 Page 8 of 37

9 SO WHAT REQUIRES A QUASI-JUDICIAL HEARING? Variances Appeals of the (Zoning) Administrator s Decisions THE BUCK STOPS WITH THE BOA. A BOA DECISION CAN BE APPEALED ONLY TO SUPERIOR COURT AND NOT THE TOWN COUNCIL 5 6 SO WHAT DOES VARIANCE MEAN? When you vary the terms of the UDO for a particular property owner at their request. In Waxhaw, a variance is defined as: Official permission from the Board of Adjustment to depart from the requirements of this UDO. SO WHAT DOES VARIANCE MEAN? Two types of variances in Waxhaw: 1. General variances; 2. Variances for structures located in the Floodplain Overlay District SOURCE: Bill Duston; Town of Waxhaw UDO; 7 8 Page 9 of 37

10 WHAT ARE GENERAL VARIANCE FINDINGS? North Carolina Courts have said: Practical Difficulties or Unnecessary Hardship Spirit of UDO is Preserved Public Safety and Welfare Secured Substantial Justice Done 4/5 VOTE OF BOA MEMBERSHIP NEEDED TO APPROVE A VARIANCE. More on this later. Does the BOA take votes on each finding? More on this later. 9 GENERAL VARIANCE FINDINGS - MANDATED BY NCGS AND INCLUDED IN THE UDO 1. Unnecessary hardship must result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size or topography, Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be used as the basis for granting a variance. 10 GENERAL VARIANCE FINDINGS - MANDATED BY NCGS AND INCLUDED IN THE UDO 3.The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. GENERAL VARIANCE FINDINGS - MANDATED BY NCGS AND INCLUDED IN THE MHZO 1. Unnecessary hardship must result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size or topography, Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be used as the basis for granting a variance Page 10 of 37

11 VARIANCE FINDINGS - FLOODPLAIN OVERLAY DISTRICT Variances may only be issued upon: 1. A showing of good and sufficient cause; 2. A determination that failure to grant the variance wo uld result in exceptional hardship; and, 3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. WHAT S A LEGAL/ILLEGAL VARIANCE? 1. Allowing for the reduction in the required number of off-street parking spaces from 13 to 11 spaces. 2. Allowing a mini-warehouse in the C-1 district when, according to the UDO, animal hospitals are not allowed in that district. 3. Allowing for a 7 foot ground mounted sign when the UDO specifies that the maximum height is only be 5 feet. 4. Allowing a reduction in the required rear yard setback from 15 to 12 feet WHAT S AN APPEAL? If somebody disagrees with a final and written decision of the Administrator, that decision can be appealed to the BOA within 30 days from receipt of actual or constructive notice of the decision). Administrator s decision CANNOT be overruled by Town Board. BOA can reverse, modify or affirm, in whole or in part, the decision of the Administrator. Anyone with standing to contest the BOA decision, may file an appeal with Superior Court. HOW ARE APPEALS CASES HANDLED? Complete application submitted to Town Clerk; Whatever is in the record is sent to BOA members AND THE APPLICANT AND THE PROPERTY OWNER (if different from the applicant); Person whose decision is being appealed must be at public hearing as a witness. If a request for an expedited hearing is made, hearing must be held within 15 days of request. MAJORITY VOTE ONLY OF BOA MEMBERSHIP NEEDED TO MAKE A DECISION ON AN APPEAL! Page 11 of 37

12 BOA RULES OF PROCEDURE (bylaws) BOA RULES OF PROCEDURE A SET OF RULES PREPARED AND ADOPTED BY THE BOA TO ADDRESS: Make sure the ROP don t conflict with the adopted UDO or the General Statutes; When officer elections occur/ roles of the officers; If it is in the UDO, don t put it in the ROP; Conflicts of interest; Attendance requirements; How voting occurs; How hearings are conducted. NOTE: Waxhaw Rules of Procedure last amended by BOA on November 3, Make sure you (staff and Chair) have them at all meetings; MAKE SURE THE RULES (AND UDO) ARE ALWAYS FOLLOWED! ROP should be reviewed annually and with all new members and staff serving the BOA. 18 Q-J Hearing Overview Q-J Hearing Overview 1. Application should be complete and submitted on time before case is processed and heard. 2. Public hearing must be properly advertised by staff. 3. People can give evidence only after they have been sworn in/affirmed to do so. 4. Purpose of hearing is to gather evidence not to gauge popularity of application. 5. You cannot make your decision based solely on financial impacts or any personal biases BOA MUST make findings that support their decision for variances good idea to share findings with applicant beforehand. 7. Written record of hearing must include written findings and the facts that support them AND HOW ANY CONTESTED FACTS WERE RESOLVED 8. Final decision must be sent to applicant and any other party who has requested a copy of the decision. 9. BOA s decision can be appealed to Superior Court by applicant or person with standing. Some communities include variance findings in application and require each to be addressed in application by applicant. 20 Page 12 of 37

13 How is a Q-J Hearing Conducted? How is is a Q-J Hearing Conducted? What are your meetings like? 1. Hearing opened by Chair; hearing procedures explained by Chair; 2. Chair asks if all BOA members can vote fairly on the case, if any member has a conflict, has an opinion on the case that is not subject to change or has had any ex-parte conversation; 3. All persons (including staff) who are to give evidence get sworn in/affirmed; 4. Staff (once sworn in) is first to speak and gives overview of case; What are your meetings like? 5. Have sign up sheet for persons who want to present evidence; use when practical; 6. Applicant (or agent, attorney) presents his/her case; give them enough time to adequately present case; 7. Others who are sworn in can speak; 8. Persons who are sworn in can be cross-examined by persons with standing; How is a Q-J Hearing Conducted? How is a Q-J Hearing Conducted? What are your meetings like? 9. Hearsay can be accepted but should not be relied upon evidence is limited to that presented at hearing; 10. Chair (or designee) summarizes evidence heard; Chair closes public hearing or period of public discussion. No further input from audience, except for: Clarifications on presented testimony given; and, Allowing applicant to comment on any conditions proposed by BOA. 23 What are your meetings like? 11. BOA deliberates and decides based on substantial, competent and material evidence presented at hearing NOT HEARSAY; and, 12. Mutually agreeable conditions can be placed on approval. Conditions prescribed by BOA must be fair and reasonable and be land-use related. Applicant should have had time to comment on conditions proposed by BOA prior to vote being taken. 24 Page 13 of 37

14 Standing PERSONS/PARTIES WITH STANDING CAN: 1. File appeals of Administrator s decision; 2. Can request that a person be subpoenaed at a BOA meeting. 3. Challenge BOA s decision to Superior Court So Who Stands and Who Sits? NCGS 160A-393 defines standing as: a. Has ownership [or leasehold] interest in the property that is the subject of decision being appealed, or an interest created by easement, restriction, or covenant in the property. b. Has option/contract to purchase the property subject to the appeal. c. Applicant requesting the appeal. d. Any other person who will suffer special damages as the result of the decision being appealed So Who Stands and Who Sits? NCGS 160A-393 defines standing as: e. An incorporated or unincorporated association [e.g., HOA] [so long as] the association was not created in response to the particular development or issue that is the subject of the appeal. f. A Town/county whose decision-making board has made a decision that the council believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of an ordinance adopted. 27 Conflicts of Interest Situations in which a board member s duty to act in the public interest clashes with the member s inclination to advance his or her personal interest. Can be financial conflicts, personal bias, or associations with those affected by a decision. In NC, you must recuse yourself from a q-j hearing if you have: 1. Fixed opinion on matter not subject to change; 2. Undisclosed ex-parte conversation; 3. Close familial business or other associational relationship w/applicant; OR 4. [Direct, substantial and readily identifiable] financial interest in outcome. 28 Page 14 of 37

15 Conflicts of Interest Waxhaw BOA Rules of Procedure also defines conflict as: If a member was not present at the public hearing at which evidence relevant to the matter at issue was taken. In NC, you must recuse yourself from a q-j hearing if you have: 1. Fixed opinion on matter not subject to change; 2. Undisclosed ex-parte conversation; 3. Close familial business or other associational relationship w/applicant; OR 4. [Direct, substantial and readily identifiable] financial interest in outcome. 29 Conflicts of Interest If you unsure if you have a conflict of interest, raise the matter up BEFORE you start hearing a case. If majority of remaining members say you DO have a conflict, you are recused. How Do You Handle A Recusal in Waxhaw? 1. Remove yourself from the remainder of the BOA sitting members? 2. Sit in the audience and do not participate in the case? 3. Remove yourself from the meeting room for the duration of the case? 4. Go home and watch an NFL game? 30 Competent Evidence S44 (SL ) Applies to q-j decisions made on/after 1/1/10 Does not allow reliance on lay witness testimony on: 1. Use of property that would affect property values 2. Increase in vehicular traffic that would pose a danger to public safety 3. Matters which only expert testimony would generally be relied upon Let persons know if what they are saying is perceived as hearsay. You cannot use hearsay as evidence used to make decision. Evidence or Hearsay? A petition signed by 100 persons I saw it with my own eyes My Mom, who couldn t be here, is 84, has lived here all her life, and says she can never EVER remember a store being on the property the applicant is lying! I just moved here from NY and we sure as he would NEVER EVER have allowed that there. You people are nuts if you approve this application. I live next door, and if you allow it, I will never be able to sell my house Page 15 of 37

16 Cross- Examination/Subpoenas Any person who has given sworn testimony may be cross-examined by the opposing party or by a person who has standing on the matter Can occur at any time during hearing BOA has authority to subpoena witnesses Making Decisions What were the facts heard during the case? How do these facts relate to each of the findings? Is there enough factual evidence to support each finding or your decision? Does your decision make sense? Is it reasonable? You can approve a variance/appeal with FAIR AND REASONABLE CONDITIONS RELATIVE TO THE CASE make sure you give applicant opportunity to comment on proposed conditions before making decision Making Decisions For variances, vote on each finding, before making final decision ALWAYS! IT IS REQUIRED! If you do not approve all findings, you cannot approve the variance request. Fair/reasonable conditions can be attached to any decision. Always state for the record why you are suggesting a condition that was not previously offered. Chair can make and second motions and vote on all matters I THINK NOT DISCUSSED IN ROP. No proxy voting allowed. Final decision must be rendered w/in 31 days from closing of hearing. Public hearings can be continued to another day so long as date, time, location are stated. No re-advertising needed if meeting is held w/in 6 weeks. 35 VARIANCES: HOW MANY YEA VOTES NEEDED TO RULE IN FAVOR OF THE APPLICANT? APPEALS: HOW MANY YEA VOTES NEEDED TO RULE IN FAVOR OF THE APPLICANT? FOUR THREE Calculate decision based on the number of persons eligible to vote (i.e., this excludes vacancies and recusals if no alternates present, but not absences!) 36 Page 16 of 37

17 Q-J Do s- Make Sure You Listen to the evidence that is being presented Is it reasonable? Does it make sense? Ask questions especially if something does not make sense! Don t necessarily take everything at face value; Have the evidence you need to make a proper decision. Do you need experts i.e., appraisers, engineers to testify? You do not need to hear the same evidence over and over again; Consider continuing the case if you need more evidence, or if it is getting ridiculously late!; 37 Q-J Do s- Make Sure You Give it your best shot planning is not an exact science; Make findings based on the evidence presented and Make decision based on findings; and, Have enough discussion in the record to give a judge a reasonable opportunity to know why/how you made your decision; If one of the required findings is found in the negative, do you need to continue on with the deliberations on the other findings? YES! 38 Q-J Do s- Make Sure You SHOULD THE TOWN ATTORNEY BE PRESENT AT ALL PUBLIC HEARINGS? Good Idea, BUT Ask only for procedural/legal advice ONLY not how you should vote!! DID YOU KNOW. BOA members can vote on an undisclosed conflict of interest on another BOA member; BOA members CAN individually visit the site for which an appeal or variance is being sought; but, BOA members SHOULD disclose what information they gleaned from that visit at the hearing; All BOA meetings are subject to the NC Open Meetings Law; NO CLOSED DOOR SESSIONS; Page 17 of 37

18 DID YOU KNOW. BOA members must refrain from stating their opinion on the case outside of the public hearing; but, BOA members can ask for limited technical information about the case from staff; staff SHOULD share this info w/other BOA members; A person can post a sign on their property letting others know that a land use decision was made affecting their property this affects the period for which appeals can be made; DID YOU KNOW. Well, sort of, maybe If you miss three consecutive regular meetings, or 50% of regular meetings in a calendar year, you may be removed from the BOA by the Town Board DID YOU KNOW. 43 Page 18 of 37

19 Variance Cheat Sheet Variances are official permission from the Board of Adjustment to depart from the requirements of the Unified Development Ordnance when a hardship would apply from the strict application of the regulations. Variances apply to all properties included in the application and run with the land. Quasi judicial Process The purpose of the evidentiary (quasi judicial) hearing is to receive sworn testimony to provide evidence whether the proposed request meets the findings of fact. Ex Parte Communication Communication between the Board of Adjustment, applicant and public outside the meeting is not allowed. Sworn Testimony Required. Applicant, staff and other affected parties present sworn testimony to gather legally sufficient factual evidence. No here say, opinions or outside matters. Statement of Not required. Reasonableness & Consistency Notice Within 10 to 25 days of public hearing date: Two legal advertisements in a newspaper of general circulation. Adjacent property owner notices to property owners within 300 feet of the property. Sign posted on property. Conflicts of Interest Board of Adjustment members must abstain from voting only if there is a financial interest, preformed bias, close familial, business or other associational relationship with an affected person. Public Comment Time limitation can be imposed on public speakers. Vote Four fifths vote. (4 of 5; 4 of 4 if one member absent) Findings of Fact Does require findings of fact. Each must be met and voted on separately. Page 19 of 37

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27 Page 27 of 37 Front/Side - Northwest View North Side - Yard North Side - Yard/ Driveway

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29 Adjacent Propoerty Owner List Number Owner Name Mailing Address City State Zip Code 1 VELEZ GUSTAVO E JR 91 HALF MILE RD GUILFORD CT CORAM JASON 2805 MCPHERSON ST WAXHAW NC HODGES THOMAS M IV 2601 HOLMVIEW ST WAXHAW NC EASTON ANDREW CARLETON 2605 HOLMVIEW ST WAXHAW NC CURETON HOMEOWNERS ASSOCIATION INC 919 NORLAND RD CHARLOTTE NC Adjacent Property Owner List Page 29 of 37

30 Deakin Ct 3 2 Mcpherson St Holmview St Legend Page 30 of 37 Roads Adjacent Property Parcels Ü Miles Holmview Street Adjacent Property Owners Data Source & Disclaimer Data provided by Union County GIS and Town of Waxhaw GIS. The Town of Waxhaw does not guarantee the accuracy of the information displayed. Map created June 2017.

31 Deakin Ct Mcpherson St Holmview St Legend Page 31 of 37 Roads Ü Miles Holmview Street Aerial Data Source & Disclaimer Data provided by Union County GIS and Town of Waxhaw GIS. The Town of Waxhaw does not guarantee the accuracy of the information displayed. Map created June 2017.

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33 VAR Staff Analysis BOA June 20, 2017 Variance Case VAR Quaine Pool Variance 2603 Holmview Street EXPLANATION OF THE REQUEST VAR is a request by Emmett Quaine, for a variance from Section 9.20 Accessory Structures of the Waxhaw UDO (Unified Development Ordinance) to reduce the required 8 foot separation distance between the principal building and an accessory structure in the R-3 zoning district. The property is located at 2603 Holmview Street (tax parcel # ) and is zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). LOCATION AND LAND USE The property is located in Phase 3 of the Cureton residential subdivision off of Waxhaw-Marvin Road and the site is an approximately 0.26 acre residential subdivision home lot. Condition and land use of the surrounding properties: The adjoining properties to the east are developed with single family residences zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). The adjoining properties to the south are developed with single family residences zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). The property to the west, across Holmview Street, is Cureton Home Owners Association common open space zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). The adjoining properties to the north are developed with single family residences zoned CU-R3-PRD (Conditional Use Single-Family Planned Residential Development). REASON FOR THE VARIANCE REQUEST The applicant, Emmett Quaine, is requesting a variance from Section 9.20 Accessory Structures of the UDO to reduce the required 8 foot separation distance to 6 feet between the principal building on a site and an accessory structure in order to allow for an aqua therapy pool. In the application, the applicant states the following regarding the finding of facts: Finding #1: Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. Applicant response: HOA accessory guidelines were/are vague in terms of language for yard definitions when home was purchased. Yard is too small for established setbacks it won t allow for a pool to be used for therapy. Finding #2: The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. Applicant response: Very small backyard. Placement in the side yard is not permitted and must go within rear envelope. 1 Page 33 of 37

34 VAR Staff Analysis BOA June 20, 2017 Finding #3: The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self created hardship. Applicant response: Home is a spec home built by Classica Homes, and were under the impression we could use the side yard. Finding #4: The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. Applicant response: No public safety issues exist or be created by 2 foot variance. PLANNING STAFF ANALYSIS This is a request for a variance from Section 9.20 Accessory Structures of the Waxhaw UDO to reduce the required separation distance between a lot s principal structure and an accessory structure to allow for additional space in the rear of the property for the placement of a therapy pool. Section 9.20 requires that accessory structure be located in the side or rear of the property and provide a minimum 5 foot setback from the side property line, a minimum 5 foot setback from the rear property line, and a minimum 8 foot separation distance between the principal building, on the same lot or an adjoining lot, and an accessory structure. The applicant states that the Cureton Homeowners Association Guidelines do not allow for the placement of pools in the side yard and therefore a pool could only be located in the rear yard. The applicant s reason for the request is that he a former law enforcement officer that is now on disability retirement due to injuries sustained on the job. The applicant is requesting that the separation distance be reduced by 2 feet, from 8 feet to 6 feet to allow the pool to be located in the rear yard of the lot. Section 9.20 Accessory Structures of the UDO states the following: 1. An Accessory Building/Structure located in either the R-1, R-2, R-3, R-4, RM-1, RM-2 or OIS Primary Zoning Districts shall not be located forward of the principal structure. Said Accessory Building and/or Structure shall not cover more than thirty (30) percent of the minimum lot size of any lot or tract. Notwithstanding, any accessory structure in these zones shall be located a minimum of five feet off any rear or side lot line, except 15 feet off any side or rear lot line abutting a public street. Said Accessory Building and/or Structure shall not be located closer than eight (8) feet from the Principal Building and/or any building and/or structure used for residential occupancy either on or off the lot and/or parcel. Accessory structure shall be of like material as the primary structure. Section 8.2 Definition of the UDO defines accessory structure as follows: Accessory Structure A detached subordinate Structure, the Use of which is incidental to that of the Principal Structure and located on the same lot therewith. FINDINGS OF FACT According to section 15 of the Waxhaw UDO the Board of Adjustment shall issue a Variance if it has evaluated an application and determined that: 2 Page 34 of 37

35 VAR Staff Analysis BOA June 20, Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. 2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. 3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. In granting a variance, the Board may attach thereto any conditions and safeguards it deems necessary or desirable in furthering the purposes of this Ordinance. ***Please refer to the 4 Findings of Fact listed above when making a decision*** 3 Page 35 of 37

36 9 General Provisions B. Fences and walls shall be located within the inner 25% of the interior (project side) of a buffer and shall not cause significant damage to roots of existing trees to be saved within the buffer. C. In lieu of shrubs, an opaque fence or wall of adequate height to shield use from public view shall be used for screening of the following: 1. Dumpsters or trash handling areas 2. Service entrances or utility structures 3. Loading docks or spaces 4. Open air storage areas D. The following materials are permitted for fences or walls used within landscaping buffers or for screening of open air storage: 1. Brick, stone, or stucco 2. Wood or vinyl 3. Metal (wrought iron, welded steel, or aluminum) 9.20 ACCESSORY STRUCTURES 1. An Accessory Building/Structure located in either the R 1, R 2, R 3, R 4, RM 1, RM 2 or OIS Primary Zoning Districts shall not be located forward of the principal structure. Said Accessory Building and/or Structure shall not cover more than thirty (30) percent of the minimum lot size of any lot or tract. Notwithstanding, any accessory structure in these zones shall be located a minimum of five feet off any rear or side lot line, except 15 feet off any side or rear lot line abutting a public street. Said Accessory Building and/or Structure shall not be located closer than eight (8) feet from the Principal Building and/or any building and/or structure used for residential occupancy either on or off the lot and/or parcel. Accessory structure shall be of like material as the primary structure. Exceptions to Accessory Structure Regulations A. Exceptions to the Accessory Building/Structure setback from the Principal Building would include structures such as detached decks, detached pergolas and any other structure typically found immediately adjacent to a Primary Structure and approved as such by the Zoning Administrator. B. Exception to the Accessory Building/Structure size limitation is taken where said accessory is located in the C 4 Primary Zoning District. C. The Zoning Administrator may allow an accessory structure to be located in the front yard in situations where it is impracticable to locate said accessory structure in the side or rear yard. If a request for the accessory structure to be located in the front yard is denied, the applicant may appeal the decision to the Waxhaw Board of Adjustment as outlined in Section 15 of this Ordinance Amended Waxhaw Unified Development Ordinance Page 36 of 37

37 General Provisions 9 2. An Accessory Building/Structure located in either the C 1, C 2, C 3, C 4, I 1 or I 2 Primary Zoning Districts shall be subject to the requirements for Setback and/or Minimum Yard Width established in Article 5 of this Unified Development Ordinance and shall not be located closer than eight (8) feet from the Principal Building. 3. Tennis courts may only be located in the rear yard on any lot whose principal use if either a single family dwelling or a manufactured home. 4. Irrespective of any of the regulations cited herein, outdoor in ground swimming pools located on a residentially occupied lot (including those associated with multi family, condominium, townhouse, or similar developments where such swimming pool is designed to be used by the residents of such residential development) shall meet the following requirements: A. The pool shall be enclosed from adjoining lots (or from adjoining dwelling units within the development) by the principal building or accessory structure on the lot containing the pool or a solid wall or protective fence that shallcomply with Section B. B. All other distance separation requirements pertinent to accessory structures shall also apply to swimming pools. 5. Kennels located on lots containing a residential use shall meet the following requirements: A. Kennels may be constructed of galvanized steel chain link fencing. B. Kennels shall have a maximum height of 8 feet and be located in the side and rear yard only. Waxhaw Unified Development Ordinance Amended Page 37 of 37