The Zoning Board of Adjustment (hereinafter “Board”) for the Charlotte Zoning Area held its meeting in the Innovation Station, Government Center, 600 East Fourth Street at 9:00 a.m., December 11, 2007. Chairperson, Andrew Zoutewelle, called the meeting to order. Reference to “Ordinance” means “Charlotte Zoning Ordinance”.
Present: Andrew Zoutewelle, Jeffrey Davis, Robert Eaton, Lee McLaren, Michael Knotts,
Chet Rabon
Also Present: Keith MacVean, Interim Zoning Administrator
Katrina Young, Planning Coordinator
Sonda S. Kennedy, Clerk to the Board
Terrie Hagler-Gray, Assistant City Attorney
Adkins Court Reporting
Index of Cases: Case #07-059 – 2656 Bay Street
Case #07-068 – 3112 Milton Road
Case #07-070 – 731 E. Kingston Avenue
Case #07-067 – 1800 Pineville-Matthews Road
Case #07-064 – 2001 Oaklawn Avenue
Case #07-069 – 1213 West Morehead Street
Case #07-056 – E. Independence Blvd, Independence Woods Subdivision
CASE NO. 07-059 - 2656 Bay Street - John A. Ross, Jr. - Tax Parcel Number 127-104-15, requesting a two (2) foot variance from the required five (5) foot side yard to allow a structure to remain as constructed.
The following sections of the Zoning Ordinance apply:
Code Section 9.205 (1) (f) requires a five foot side yard in an R-5 zoning district. Code Section 2.201 (g) defines the required side yard as the minimum distance required by this ordinance between the side lot line and the side building line, extending from the established setback to the established rear yard.
At its meeting on December 11, 2007, the City of Charlotte Zoning Board of Adjustment (“Board”) granted a two (2) foot variance from the required five (5) foot side yard to allow a structure to remain as constructed.
The Board based its decision on the following findings of fact:
- The property is identified as Tax Parcel Number 127-104-15.
- The property is currently zoned R-5.
- Code Section 9.205 (1) (f) requires a five foot side yard in an R-5 zoning district.
- The applicant unsuccessfully attempted to purchase land or swap land with Mecklenburg County.
- There was no opposition.
- The property is unique in that it abuts Mecklenburg county greenway land and abuts FEMA flood plain.
- The applicant voluntarily agreed to remove the illegal fence encroachment.
- There was testimony that the violation was a result of a survey error.
- The applicant took many precautions during construction to prevent a violation.
Conclusions of Law
- The variance is in harmony with the general purpose and intent of the Ordinance and further preserves its spirit.
- The spirit of the Ordinance will be observed because in granting the variance, the public safety and welfare have been assured and substantial justice has been done.
- The hardship is not the result of the owner’s own actions but due to the result of a surveyor error.
The decision of the Board was expressed in a motion by Board Member Michael Knotts and seconded by Board Member Lee McLaren to grant the variance. A yes vote is to approve. Board Member Michael Knotts moved to adopt the findings of fact and conclusions of law which was seconded by Board member Jeff Davis. All Board members voted yes to approve the findings and conclusions.
Ayes: Zoutewelle, Davis, Eaton, McLaren, Knotts
Nays: None
CASE NO. 07-068 - 3112 Milton Road - Rachel M. Garcia - Tax Parcel Number 099-231-02, requesting a variance of seven (7) flags to allow a total of ten (10) flags per street front.
The following sections of the Zoning Ordinance apply:
Code Section 12.418(d) Public flags on permanent flagpoles states that there shall be no more than three (3) public flags allowed per street front. These flags may be flown on one flagpole, or flown on separate flagpoles.
At its meeting on December 11, 2007, the City of Charlotte Zoning Board of Adjustment (“Board”) denied two variances - (1) a two (2) flag variance and (2) a seven (7) flag variance to allow five (5) flags on one street front and ten (10) flags on one street front instead of the allowed three (3) flags per street front.
The Board based its decision on the following findings of fact:
- The property is identified as Tax Parcel Number 099-231-02.
- The property is currently zoned B-1SCD.
- The variance is very large in context.
- The hardship is a personal hardship.
- There is no land hardship.
- There is no evidence of hardship applicable to the property covered by this variance request that is not common or applicable to other businesses in the City with the same amount of street frontage.
- The applicant can make reasonable use of the property without the requested variances.
- The variances are not peculiar to the Applicant’s property.
- The requests are in direct violation of the Zoning Ordinance.
- Based on the code requirement of 3 flags per street front, the applicant can have nine flags without a variance.
Conclusions of Law
- If the requested variances were granted, the Board’s action would be in direct conflict with a specific provision of the Zoning Ordinance that would have the effect of unlawfully amending the City’s Zoning Ordinance.
- There is no hardship that is the result of the City’s Zoning Ordinance. The applicant is seeking to erect 10 flags on one street front and 5 flags on one street front instead of the permitted 3 flags per street front.
- The spirit of the Ordinance would not be observed because there is no hardship.
The decision of the Board was expressed in a motion by Board Member Jeff Davis and seconded by Board Member Michael Knotts to deny the variance but include the proposed findings of fact (except item #9) and the conclusions of law as recommended by staff. A yes vote is to deny.
Ayes: Zoutewelle, Davis, Eaton, McLaren, Knotts
Nays: None
CASE NO. 07-070 – 731 E. Kingston Avenue - 731 E. Kingston LLC (Vivian Munson) - Tax Parcel Number 123-115-09, requesting a two (2) foot variance from the required 35 foot rear yard to allow an addition to remain as constructed.
The following sections of the Zoning Ordinance apply:
Code Section 9.205 (1) (g) of the Charlotte Zoning Ordinance requires a 35 foot rear yard in a R-5 zoned district. Code Section 2.201 (h) states the required rear yard as the minimum distance required by this Ordinance between the rear of a principal building or structure and the lot line farthest from the street fronting the lot as measured parallel to the real lot line, projected to the side lines of the lot on which the building or structure is located.
At its meeting on December 11, 2007, the City of Charlotte Zoning Board of Adjustment (“Board”) denied a 3.6 foot variance from the required 35 foot rear yard to allow an addition to remain as constructed.
The Board based its decision on the following findings of fact:
- The property is identified as Tax Parcel Number 123-115-09.
- The property is currently zoned R-5.
- An existing tree does not create the land hardship because the encroachment is to the rear and not the side.
- The hardship is not unique to the applicant’s property.
- The applicant can make reasonable use of the property without a variance.
Conclusions of Law
- The spirit of the Ordinance would be observed by denying the variance, in that the applicant can still secure a reasonable return or make reasonable use of the property.
- Granting the variance is in direct violation of the Zoning Ordinance.
The decision of the Board was expressed in a motion by Board Member Michael Knotts and seconded by Board Member Robert Eaton to deny the variance but adopt the findings of fact and conclusions of law (except item #3) as proposed by staff. A yes vote is to deny.
Ayes: Zoutewelle, Davis, Eaton, McLaren, Knotts
Nays: None
CASE NO. 07-067 - 1800 Pineville-Matthews Road - Danny Hignight (Providence High School) - Tax Parcel Number 213-051-06, requesting a 45 foot variance from the required 75 foot buffer requirement to allow the construction of a high school athletic concession stand.
The following sections of the Zoning Ordinance apply:
Code Section 12.302(3) Buffer requirements states there is a buffer requirement that includes a minimum distance separation from the property line and required planting of trees and shrubs within the buffer. Table 12.302(a) – requires a “Class B” buffer between a high school institutional use and multi-family use. Table 12.302 (b) – requires a width of a 75 foot “Class B” buffer for acres of 10 or more.
At its meeting on December 11, 2007, the City of Charlotte Zoning Board of Adjustment (“Board”) granted a 45-foot variance from the required 75-foot buffer requirement to allow the construction of a high school athletic concession stand.
The Board based its decision on the following findings of fact:
- Charlotte-Mecklenburg Schools owns tax parcel 213-051-06, which is located at 1800 Pineville Matthews Road.
- The property is zoned R-3.
- Code Table 12.302(b) requires a 75 wide “Class B” buffer for acres of 10 or more.
- The encroachment is not any closer than the existing improvements including bleachers.
- The buffer requirement was effective after the construction of the school.
- The area of the encroachment into the buffer is much lower than the adjacent property with the slope serving as a natural buffer.
Conclusions of Law
- The hardship is not the result of the applicant’s own action, but rather the result of the layout of the ball field, which is unique to this property and leaves no options for alternate sage locations for the concession stand and storage facility.
- The spirit of the Ordinance shall be observed because in granting the variance, the concession stand and storage facility will not be located any closer to the property line than the existing bleachers.
The decision of the Board was expressed in a motion by Board Member Jeffrey Davis and seconded by Board Member Robert Eaton to grant the variance and adopt the findings of fact and conclusions of law as proposed by Staff. A yes vote is to grant.
Ayes: Zoutewelle, Davis, Eaton, McLaren, Knotts
Nays: None
Withdrawn by Applicant
CASE NO. 07-064 - 2001 Oaklawn Avenue – Thomasina Massey, EMANSER LLC - Tax Parcel Number 078-412-09,requesting a variance from the street access requirement to allow a bed and breakfast to be in a single family district to be accessed by a local (Class VI) street.
CASE NO. 07-069 - 1213 West Morehead Street - Storage, LLC (Represented by John Carmichael) - Tax Parcel Number 073-254-03, requesting a variance in its entirety from 9.102(a) 12 to allow a site to be redeveloped without the parking area to meet the regulations.
Jeff Davis was excused from the afternoon portion of today’s meeting because of a previous appointment.
Chet Rabon, Board Alternate sat in on the afternoon session.
The following sections of the Zoning Ordinance apply:
Code Section 9.102(a)(12) of the Mecklenburg Floodplain Regulations requires all parking areas for new or substantially improved non-single family habitable buildings must be at an elevation such that water depths would be less than 6” deep in any parking space during the occurrence of a Community Base Flood.
At its meeting on December 11, 2007, the City of Charlotte Zoning Board of Adjustment (“Board”) granted a variance in its entirety from Section 9.102(a) (12) to allow a site to be redeveloped without the parking area to meet the regulations with the following three (3) conditions: (1) the applicant is to provide to the Zoning Administrator and Floodplain Manager a certificate of the design of a cabling system that is reasonably sufficient to ensure against the danger that materials allowed to be placed in the floodway as a result of the variance might be swept away onto other lands to the injury of others during a Community Base Flood; (2) to provide clear signage at each entrance to the area that the parking lot may be subject to flooding; and (3) the use of the building is to be that set forth in the application and specifically not residential in nature.
Board Chairperson Andrew Zoutewelle suggested to delay deliberations on this case in order that applicant can gather additional evidence. A motion was made by Board Member Alternate Chet Rabon to reconvene for deliberations; seconded by Board Member Michael Knotts. All members voted yes to hold a special meeting for deliberations but will not receive any additional findings from the applicant. The date was set for December 19, 2007.
Case Continued until January
CASE NO. 07-056 - E. Independence Blvd, Independence Woods Subdivision - John Bordsen - Tax Parcel Number 133-081-22, appealing the Zoning Administrator’s decision that R-4 single family district may exceed the density requirements of dwelling units per acre.
The following sections of the Zoning Ordinance apply:
Code Section 9.205(1)(a) states the maximum dwelling units in an R-4 zoned district is four (4) units per acre. Code Section 9.205(5)(a) Cluster Development a cluster development need not meet the minimum lot area and lot width requirements set out in subsection 9.205(1), provided that the development does not exceed the maximum residential density for the district, and provided that each lot meets the minimum lot area and lot width requirements set forth in Table 9.205(5). Code Section 2.201 Density, Gross Residential. The number of residential dwelling units per acre of land is determined by dividing the number of dwelling units by the total number of acres in the parcel to be developed.
Code Section 2.201 Cluster Development. A tract of land, at least 10 acres in area, under individual, cooperate, firm, partnership, or association ownership, planned and developed as an integral unit, in a single development operation or a definitely programmed series of development operations and according to an approved preliminary site plan. Code Section 1.106 states that it is not intended that this ordinance will in any way repeal, annul or interfere with the existing provisions of any other law or ordinance
except the zoning ordinance which this ordinance replaces. In addition, it is not intended that this ordinance will in any way repeal, annul or interfere with any rules, regulations or permits which were legally adopted or issued under previous ordinances for the use or development of land or structures. Finally, it is not intended that this ordinance will interfere with any easements, covenants or other agreements between parties. However, if the provisions of this ordinance impose greater restrictions or higher standards for the use of a building or land, or for yards or size of structures than is called for by other ordinances, permits, easements or agreements, then the provisions of this ordinance will take precedence over the others and will control the use or development, except as otherwise provided under Section 1.105. Code Section 4.106 Public notification process is required for certain land uses.
This case was introduced to the Board by Staff member Katrina Young. Upon her conclusion, the applicant’s representative, Robert Brandon asked the Board for a continuation.
The decision of the Board was expressed in a motion by Board Member Michael Knotts and seconded by Board Member Robert Eaton to continue the case until the January hearings.
Ayes: Zoutewelle, Eaton, McLaren, Knotts, Rabon
Nays: None
