Board of Adjustment - Regular Meeting

Good morning, citizens of Oak Island. Welcome to September 9, this year, meeting of the Board of Adjustment. This will be mostly an administrative meeting. I move for the approval of our minutes from the July 15 meeting. I didn't get those. It should have been included with that. Does anyone else not get the minutes? I did.

As a matter of fact, I complimented the staff on getting a move a week ahead of time. I came to get the agenda packet yesterday, and it was unavailable.

Yes, I got here my usual time, and the door was locked, and a fellow from the planning board said there's not going to be a meeting today, so a little confusion there.

If you're not comfortable with the minutes today, since you haven't read them, you can put them to next month. That's fine.

Well, I'll defer to what the rest of the...

I haven't read a meeting, though. I didn't get them. That's what I'm saying. It's up to you, the board.

Shall we send out for them? Why don't we just defer them until the next meeting? Okay.

I second.

Second that motion. All in favor?

Aye.

Okay. The approval of minutes is pushed to our next meeting. Old business? Any old business questions about previous cases?

Well, we did bring up the question of whether The golf cart place that we had the long discussion about the sign, that there's been no sign to that point. We're just curious as to whether or not that decision was, or if we know that the decision not to put a sign up to this point was because the conditions that we placed on the sign approval were

To honor us?

Yes, thank you.

And further to that, there was a cloth sign draped near the tree, and then that mysteriously went away. So if we could get any feedback from that. Were you working here then?

No, I wasn't. But yeah, I can check on that for you.

And report back, because... We hate to hear that. We think we're doing something good and positive, putting the restrictions, and then the people who got it said, too much bother. You know, the hell with it. So anyway.

Can I speak, Mr. Chair? I wanted to say, I guess this falls under old business, but I know you just received the findings from the last hearing. And I will say, I know you all wanted to get them ahead of the meeting. Ray and I are still kind of working this out on drafting them and having me review them and everything. But we do want you all to review them, see if they look OK, and if possible, vote to adopt them today so the chair can sign them. Yes.

And these are the findings of fact. Correct. Correct. It's the typical order. The findings of fact from July 15. And we did go through these. And this is the final decision to, I guess, what? Make it official? Make it law? What exactly should we say? I'm going to put in the date.

Something, I think, do we have, have we mixed some of the information? Yeah, that's what I'm thinking here.

Some of the information mixed up. Number three.

Two and three.

This talks about a pool, the pool. That's the previous case.

This is why I wanted you all to look at it, because I'm not as familiar with some of these facts instantly, and Ray and I are still kind of working together on this. So it should be that two and three should be taken out, is that correct?

It's information from a previous case.

Yeah, it looks like maybe possibly four. Conclusion. All right, let's do this y'all They don't refer to the sign they refer to a prior decision, so I think this needs to be All right, okay, so so right let's get together and rework this one It looks like there's some facts in from you probably just worked off of an old one that I may have at the last minute here I printed a couple copies in case there were more

people that I needed to print for. So I think those might have been the copies that got into that stack, because the original stack that I have some other ones here that are probably more accurate.

Let's make sure everyone's got the correct one.

I think I printed two that are probably inaccurate. Sorry about that.

That's pole sign.

That's good. What do your two and three show? This is pole sign. Do you have one? Yeah, this is Derek Lee.

I'm looking at this to see if it's different.

Page 2 is the poll.

Really?

How about, let's just make sure. Oh, the poll, the Dairy Queen sign.

That's the Dairy Queen. Yeah. Page 3 states exactly on number 12, the property owner's advocate, da-da-da-da-da, required by Dairy Queen of Bloomington. So that's page 3 is the poll.

But conclusions is fine.

Then we get into page 4, and all of a sudden number 2 says...

That's a swimming pool. So let's collect them up. It's fine. Let's collect them up. We'll get it straight. We'll have it for the next meeting.

This is the pool.

Yeah, we're going to.

This is the swimming pool. This is the scrub. Okay.

Well, I'm glad we do this.

No kidding. Here we go. I wrote on mine. It sort of cuts it apart. Boy, I want you to see what those are compared to four or five. Right? The last page is irrelevant.

And I'm just not sure that even in this case there's sufficient detail.

That was one of the things that we were kind of working on was to get enough detail in. And also I wanted to add in, like I added in a part about the person presenting it, you know. I saw that, yeah. But we both will look over it carefully and make sure every paragraph's correct.

Well, I appreciate the board scrutinizing this because previous practice had me down in the lobby. I handed it and just signed it.

It's new. I mean, it's a new process with Ray and I doing it, so it's not a problem. We'll get it straight.

May I ask a question? Yes. So to the Vice Chairman's point, if there are details in here that you would like to see included in the findings of fact, can we do that much here at least? Yeah. And then it'll be a nice document.

Yeah, I think we want to make sure that in the findings of fact that there is sufficient evidence

recall of the discussion to justify the findings of fact so so part of what we're trying to do here this is actually a good meeting to be talking about this is that before it seemed the the order just kind of read or the I guess, the adoption of what they call a final decision. It just basically said, you know, APCA presented evidence. So, you know, what Steve is saying is we want a little more of the substance of what they're saying. And so, for instance, on this one, we added back in, you know, the property owner's advocate provided testimony a pull sign was required by Dairy Queen and offered evidence the location of a new pull sign would require a variance due to the configuration of the property. So that's more detailed than we've ever kind of given before, right? And then it said, you know, the property owner was sworn, provided testimony further stating that the requirement to continue operating the Dairy Queen. So I felt like we got the essence of what they were testifying to, right? Yeah. And then, you know, the tenant, Mr. Hooks, was in support of it, and then it was closed. And so I felt like this was sufficient for this. But obviously where it's most important is where we have, where you all deny a variance, because we want to make sure it's really clear what the testimony was and what you're

basis for the denial was in case there's an appeal right i mean i think that's what we want to make sure that in in the recitation of what the board did that there is sufficient information to justify the decision yeah that we came to yeah yeah yeah yeah and so um and so because of the

Mixed with the other one, that's not showing here. Right, got it, okay.

Ms. Lydia, can we also maybe suggest, I don't know if this is part of it, but they said that the applicant said that the sub shop, their sign was not in compliance and they would take theirs down so they can add it to the Dairy Queen one. I was thinking if we add that, then we're sort of killing two birds with one stone, because we said yes to that too.

But you still granted the variance, right?

That was a condition, I thought. That was one of the conditions. That the sub shop was in agreement because they were there, too, that they would take their sign down because it was not in the...

Okay, so, Ray, let's add that to the... agreed upon condition during the discussions with the applicant.

Right. And number two of the conditions has them removing their sign. So you want me to add in that it'll be on the new sign?

Yeah. Add in that in the new sign that we're supposed to also add the sub-sign.

Correct, there'll be a sub-sign, but they're gonna take their sign down that is also not supposed to be there, it shouldn't be there. They're gonna take that down and make it within compliance, but they got approval, we agreed, that they can then add their advertisement along with the Dairy Queen sign. Right, right. And that's what we said was one of the stipulations. We'd prefer that.

Yeah, one of the conditions is for them to remove their old sign.

And the piece of rebar that was sticking up.

Yes, yes.

Okay.

Can you supply us with the minutes from that meeting?

Well, I'll tell you what. I think we're kind of really caught up in too much nuance here. We'll look at the minutes. We'll listen to the meeting if we need to. We'll come back with what you're asking for and the findings and the conclusion and get it.

Can you send the minutes to us?

They were in the agenda packet. No, they weren't. They were not? Yeah. Okay. But we'll make sure you get the minutes, too. Okay. Thanks.

All right. My memory is only so good. Pardon me? My memory's only so good.

I'm with you. I hear you. Does the board have any more questions for the staff or the attorney? I do have one comment.

Go ahead. Lydia, thank you for explaining the importance of the details, especially if the board were to deny a variance request, but I think just as importantly, that detail is important when we approve, because obviously there's going to be some folks, we've seen them and know them, that are in opposition of the most positive things on this island. So a full explanation of the decision, even granting a variance, I think is equally as important.

Yeah. I'm with you. Thank you. I want to piggyback, because then you always have somebody who comes in, but you gave it to them. Why did you give it to them? And that gives us our justification. If you just read this, this is why we justified that.

Yeah. Steve's point is well taken, especially if the decision is appealed. Definitely. That's where we're at. new business, this business?

Well, I think if we're going to talk about deleted new business, that's what. Okay, deleted new business. Right. Which I have on my agenda. Right. So the question was, number one, how did the staff or the decision, how was the decision reached that, the driveways were in fact um legal non-conforming uses as opposed to being requiring a variance so going back in aerial photography we could see that it was they were in place well before the new udo came into play okay so that was just a the staff reassessed okay yes Well, the whole non-conforming structure section of the ordinance raised some questions for me that I was hoping that we could get some clarification on. And I don't have, unfortunately.

Wait a minute.

Hang on. You mean this?

Yeah. Thank you.

Can I just make a quick comment, Steve? Sure. To your point, and Taylor's not going to be here today. Is that right, Ray?

I guess not. Not sure.

OK. One thing I did, because I couldn't recall when that was changed. And it was November of 2025. And so I looked up the packet with the amendment. And maybe you did this too. But I also looked up the minutes from that night, which might provide us with a little clarity. I'm sorry. Hang on just half a second. I'm sorry, this is taking me a minute here. So that night, there was a public hearing, and the amendments were, there were several amendments, but when we got to that one, it said, I'm so sorry. Public hearing two, okay. So this text amendment, the article nine amendments aimed to enhance development opportunities by easing restrictions on non-conforming structures, allowing improvements as long as the non-conformity is not increased. And it had been looked at by the planning board and approved by the planning board. So I don't know if that's helpful or not. That's the only mention I have of any intent behind it. So go ahead and take it away.

9.4.3 says that a permit or repair or reconstruction may be issued when the proposed improvement satisfies the standards of this section and all other applicable requirements of the ordinance. And it's not clear to me what that means. Does that mean that the reconstructed non-conforming use has to conform to things like building setbacks and or construction materials or, you know? And obviously, if that's what it means, then that means that it can't be reconstructed. Because if it's non-conforming by definition, then it can't conform to all other applicable requirements of the ordinance.

No one's disagreeing with you.

So where we are right now, hi Taylor, where we are right now is we're talking about this question of in 9.4, where it says a permit may be issued when the proposed improvement satisfies the standards of this section and all other applicable requirements of the ordinance. Now, that was in there previously. That's not something we changed. So that's always been in there. So how do you interpret that? How is that to be interpreted in your view?

other requirement or maybe it's a development permit that requires for state requirements if it's a division I might not sign that map

about non-conforming structures, then they are non-conforming by definition, and requirements of the ordinance.

Does the word applicable have to do with the non-conforming use that we're trying to we're allowing along with applicability.

Right. Well, that's the question. How would that be interpreted?

Are we discussing the driveway? Is that what we're referring to?

That's one example. But there could be and have been other examples that have come before the board at different times of things where people have asked for a variance because conforming structure that they have to meet other requirements. And that's where this is very confusing.

I understand your point now. Yeah, I agree. In the case of the driveway, for example, all other requirements, that comment, right, what led them to initially apply for a variance was a comment they received from stormwater. It actually didn't come from planning. And that was stormwater saying, well, you're resurfacing your driveway. You now have to fix these stormwater components. We disagreed on that for that reason. It is an old driveway. It has been there for a long time. It would be unfair for them if they're making repairs to that driveway to also hold them to this other standard now of having to make these improvements. So yes, I understand what you're saying now, and that was the determination that we came to.

Well, I think that particular statement in this particular clause will only lead to more confusion as time goes on. And so I think if there's some way to reword that so that it's clearer.

Are you talking a text amendment?

I'm talking whatever is required. I'm not suggesting any particular solution. But I do have another question for the attorney, which I'm sure she's going to love.

Like we're a law school again.

If we grant a variance, for example, we grant a variance to allow a shed to be three feet from a property line rather than the required eight feet. Somebody else buys the house and the shed can still stay there. It runs with the land. But my question is, if somebody takes that shed down and we haven't put a condition in requiring any new shed to meet the setback requirements, could someone then, based on that variance, Rebuild the shed or put a new shed in only three feet from the from the You mean could they be on the existing footprint yeah?

Completely brand new shed on the right so we kind of hit on this a little didn't we when we're thinking about the driveway thing Not for me.

I would think not but I mean is it isn't a variance in a sense an easement on to

Well, I'll tell you, I researched this quite a bit, and there's a lot of case law where it kind of gets to that point that deviates as to what's a complete reconstruction versus a massive improvement, if you will. And what I have read really seems to come back to the precise wording in the town codes. And it can be impacted quite a bit by the precise wording in the town codes. And I think when Taylor and I talked and We looked at the overall intent of how, for example, the driveway reconstruction in our hypothetical, how it would have fit into the way this code is written, it would have been allowed. it kind of defeats the purpose of a nonconforming variance, or a nonconforming situation, because then it could be there infinitely. But the council has chosen, I guess, to allow reconstruction, if you will, up to a certain point. Am I saying that right, Taylor?

The nonconforming ordinance does go into the abandonment of a nonconforming use or structure. If it's removed from the property, it talks about you can't reestablish it.

Right.

But I think you're posing a different question, which is if you have that situation and they've gotten a variance, now that's been recorded on the property, in that case, does that kind of create a loophole?

I think it creates an ongoing variance. I think it is. Yeah. I think it's okay.

So if it was our intent then to allow a structure to remain a structure that requires a variance, we grant a variance, but we want that not to continue in perpetuity, it is incumbent on us to place a condition on that variance that if the structure is removed, it cannot be replaced in the same place.

Yeah. That's a great point. Absolutely. Because you can place reasonable conditions. The life of the fence is fine or whatever and something like that. Yeah.

That was just I wanted to get that straight in my head as far as.

That's great too. So as you all consider each variance, that's something to consider for those conditions. Right. Now, the recordation of variances, Taylor, they're only in your office, right? Are they at the courthouse?

So I do provide them to the applicant so that they can go record them at the county. We don't do that for them.

But they can record those, okay. So they do become record.

That might be part of maybe our... Guidance to people as we get as we grant variances to suggest that they might want to record that I usually do include that in the email when I provide it.

Yeah Okay Very very illuminating Members have any more questions Well since we brought up deleted new business.

Can I do I? deleted new business from a meeting ago, minimum housing standard that was removed from BOA and remanded to the council. In the August meeting, council addressed those and denied the appeal for both of those properties. The property here on 56, that structure has been raised.

Yep, 4308 has been taken down. And then the one that was over here on Beach has also been removed. And then we've got the clock ticking on two others.

Is that a quasi-judicial? Yes, it was.

Can I expand on 4308? Yeah, so 4308, we had been working with them, Taylor and Michael in my office, to try to get them to do something about that house for some time. And they are actually, we're actually, and as my understanding is, are actually in the process of trying to sell it. And so actually the raising was them, not the town.

It wasn't, we didn't have to pay for it yet. I think the town council adopting the ordinance, it's kind of weird to say that, but the ordinance put the pressure on them to go ahead and do it instead of waiting a little bit longer. So yep, we're making some good, impact there with some properties that have been sitting around for a while on that list.

As I recall, one of the reasons for us not hearing that case was it would have to go to the building review board and we don't have a building review board. How is that finessed legally? Well, we do have one now.

It is the town council. The ordinance was changed to make the town council.

How about that? Any more questions from anybody on anything? I'm trying. Okay, yes, well.

We'll get one for you after the meeting.

I'm going to dispense with Chairman's comments, staff member reports, and we are now adjourned. Good job.