TOWN OF EMERALD ISLE BOARD OF ADJUSTMENT SPECIAL MEETING MINUTES MONDAY, MAY20, 2024  The meeting was called to order at 6:05 PMI by Chairman Kenny Sullivan. Members present were Kenny Sullivan, Athan Parker, Ty Cannon, Susan Monette, Andrea Beasley, and Alternate Jim Dubovec. Also attending was. Planning Director, Christopher Seaberg and Town Attorney Jill Quattlebaum. Also in attendance were the applicant, Brent Quick and his legal representative The first order of business was to appoint the Board of Adjustment secretary. Andrea Beasley made a motion to appoint Planning Director Christopher Seaberg as the Board of Adjustment secretary. Ty Cannon seconded the motion. The Board voted unanimously (5-0) to approve the The second order of business was to open the advertised Public Hearing for Variance Case # VAR-24-001. Athan Parker made a motion to open up the Public Hearing. Andrea Beasley seconded the motion. The Board voted unanimously (5-0) to approve the motion. The Public Hearing was open at 6:07 PM. Ms. Quattlebaum stated that the only individuals that signed up to speak in the public hearing were the applicant, Brent Quick, and his legal counsel, Katie Coyle. Both individuals confirmed that they wish to provide testimony and evidence for the variance case and not provide information for the Public Hearing. Athan Parker made a motion to close the Public Hearing. Ty Cannon seconded the motion. The Board voted unanimously (5- The third order of business on the agenda was Variance application VAR-24-001. Case #VAR- 24-001 is a variance request submitted by James Brent Quick to Section 5.1 ofthe Emerald Isle Unified Development Ordinance. The property is located at 1310 Emerald Drive. The variance would allow for the replacement of decking and access in the front of 1310 Emerald Drive to adhere to a 14-foot front yard setback versus the minimum 30-foot front yard setback. Chairman Sullivan asked if any member of the Board had any form of ex parte communication with either Town Staff, the applicant, or any other representative ofthis case. No member oft the Chairman Sullivan asked if any member of the Board has any Bias or Conflicts of Interested relative to this case. No: member of the Board disclosed any Bias nor Conflicts ofl Interest on this Mr. Seaberg administered the oath to Brent Quick. Chairman Sullivan administered the oath to Mr. Seaberg. Chairman Sullivan administered the oath to Mr. Seaberg as the secretary and a witness. Mr. Seaberg asked ift there were anyone in the audience that wish to provide testimony on this case. Noone from the audience expressed a desire to provide testimony on this case. Mr. Seaberg began with the staff report on this case. He stated that On April 9,2024, Mr. Quick submitted a development application to remove and replace the existing deck for the structure at 1310 Emerald Drive (See Exhibit #1). Mr. Quick was notified via email by Greg Hayes,  Katie Coyle. There were several citizens also in attendance.  motion.  0) to approve the motion. The Public Hearing was closed at 6:081 PM.  Board disclosed any ex parte communication.  case.    Assistant Town Planner, expressing concerns with the location oft the existing deck within the code required front yard setback (See Exhibit #2). Town Customer Service Representative, Tony Sermarini, documented in email format that Mr. Quick informed him over the phone on April 11, 2024, that the stairs and decking were removed (See Exhibit #3). Both actions occurred without any permit being issued by the Town. Mr. Seaberg provided the Board and audience with a visual presentation of Exhibit #1,2, and 3. All three exhibits are attached to Mr. Seaberg further stated that on April 12, 2024, Mr. Hayes received an email from Attorney Kathleen Coyle representing Mr. Quick arguing that the deck should be permitted (See Exhibit #4). On April 15, 2024, Town Planning Director Christopher Seaberg answered Ms. Coyle's email (See Exhibit #5). That April 15, 2024, email documented the specific portions ofTown code relevant to Mr. Quick's project. The email also stated that Town Manager Matt Zapp and Planning Director Christopher Seaberg made a site visit to verify the measurements from the Right-of-Way ofNC Hwy 58/Emerald Drive. Measuring from a concrete Right-of-Way marker located at the corner ofNC Hwy 58/Emerald Drive and Raleigh Street, the front line ofthe house, not including any portion of the footprint of the previous deck or stair structures, was 30 feet. Mr. Seaberg provided the Board and audience with a visual presentation of Exhibit #4 and Mr. Seaberg further stated that on April 23, 2024, Mr. Quick submitted his application fora variance (See Exhibit #6) of Section 5.1 of the Emerald Isel Unified Development Ordinance (Seel Exhibit #7). Mr. Seaberg provided the Board and audience with a visual presentation of Exhibit #6 and 7. Both exhibits are attached to these minutes for reference. Mr. Seaberg further stated that Section 2.3.5 of the Emerald Isle Unified Development ordinance requires Town staff to publish ai notice of the public hearing in the newspaper atl least 10 days and not more than 25 days before the hearing. The notice must be in circulation once a week for two successive weeks. The notice oft this public hearing was published in the May 8,2024, and May 15,2024, editions oft the Carteret News Times (See Exhibit #8). Mr. Seaberg provided the Board and audience with a visual presentation ofExhibit #8. Exhibit #8 is attached to these minutes for reference. Mr. Seaberg further stated that Section 2.2.3(4)(B) oft the Emerald Isle Unified Development Ordinance requires Town stafft to notify the applicant and adjacent property owners via USPS First Class Mail to the mailing address documented on the Carteret County Tax Records accessed through nttps/arcgisweb.carterctcountync.gov/maps. The notices were drafted and mailed on May 2, 2024 (See Exhibit #9). Mr. Seaberg provided the Board and audience with a visual presentation of] Exhibit #9. Exhibit #9 is Mr. Seaberg further stated that Section 2.3.5(4) of the Emerald Isle Unified Development Ordinance requires aj posted: notice on both the property in which the application is pertaining to and the normal meeting postings for Town reviews. A Town Public Notification Sign was place on the property at 1310 Emerald Drive on May 1, 2024. The public notice for the hearing was posted at the Emerald Isle Administration Building and the  these minutes for reference.  5. Both exhibits are attached to these minutes for reference.  attached to these minutes for reference.  Emerald Isle Board Meeting Room on May 13, 2024.    Chairman Sullivan pointed out to Mr. Seaberg that he noticed a different address on the side ofthe structure. He asked Mr. Seaberg ifthere was a different mailing address for the site. Mr. Seaberg stated that it was his understanding that this structure is a duplex dwelling with Kathleen Coyle, the applicant's attorney began the applicant's testimony. She stated that she will let the applicant, Mr. Brent Quick, to give the testimony on this case but she wanted to give the Board an overview oft their point of view. Ms. Coyle stated that this is a home and deck that was originally built in 1973. She stated that the deck has always been a part of the house and it is the only access to the front door. Ms. Coyle stated that the deck has been there since 1973 and was unsafe. She stated that Mr. Quick wanted to repair the deck. Ms. Coyle stated that when Mr. Quick began the repair of the deck it collapsed. She stated that the concrete columns were installed due to a misunderstanding with his contractor. Ms. Coyle stated that they provided Planning Staff with an argument that this project fell under the Town code for nonconforming structures and they should be able to replace it in the same foot print as long as the cost did not exceed fifty percent (50%) of the value of the structure. She stated that Town staff disagreed with that interpretation. She further stated that they still do not agree with Town staff's Ms. Coyle stated that their next action was to apply for this variance request. She stated that a strict application of Section 5.1 will create an unnecessary physical hardship because the front door of the home cannot be reached if the applicant is unable to rebuild the deck, and the three- foot encroachment permitted does not provide adequate area for steps and a landing to the front door. There is no interior stairway from the bottom floor to the top floor. The deck is an essential component of the house; without it, the home cannot be used as intended. In addition, it would be extremely unsafe tol have a front door that opens to at two-story drop. Ms. Coyle stated with regards to the hardship being the result from conditions that are particular to this property, this is an old property and hasn't changed. She further stated that the house and deck were built in 1973, with the steps up to the deck and the deck itself providing the means of entry. She stated that there is no interior stairway, SO the door on the bottom floor cannot act as the front door to the house. Presumably, the house and deck were built in accordance with all Ms. Coyle stated that the hardship does not result from actions that Mr. Quick. She stated that the home has been in the family since the mid-1980s. They have tried to keep the deck up as best they could, but 51 years of coastal weather takes its toll. She further stated that Mr. Quick was simply trying to temporarily repair the deck while he awaited the issuance of the permit when the deck collapsed. Furthermore, the original plat to this parcel shows that the lot was originally 15-16 foot deeper than it is today. Ms. Coyle stated that presumably, at some point, right-of-way was taken out oft the parcel for Emerald Drive and, if that taking had not occurred, Ms. Coyle stated that the requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured, and substantial justice is achieved. She stated that replacing the deck will permit safe access to the front door of the house for inhabitants, guests, neighbors, letter carriers, delivery persons, and others. She further stated that rebuilding the deck will avoid the unattractive and bizarre appearance ofan inaccessible front  one unit on the first floor and another unit on the second floor.  interpretation ofthe code.  applicable laws at the time.  there would be no setback issues now.    door on the second story of the house, which would drive down the value not only of 1310 Emerald Drive, but also the values of neighbors' houses. It will also avoid the terrible possibility ofsomeone accidentally stepping out ofthe front door and injuring themselves ina fall from the second story. Ms. Coyle stated that the deck will still be a safe distance from the road and will not create a greater noncontormity than the old deck. She stated that Mr. Quick'sf family have been taxpayers in this town and county since the mid-1980s. They have brought visitors to the town who have, in turn, purchased property here. She further stated that the neighbors at 1312 recently made major renovations to their home. Ms. Coyle stated that the structure clearly does not meet the side yard setback requirements and, in fact, may even encroach on my lot line, sO they must have received a variance. She stated that it would be unjust to deny Mr. Quick a permit to rebuild my deck when the Town has allowed the neighbor at 1312 Emerald Drive a variance for what would otherwise be a much greater Ms. Coyle stated that the Quick family measured the property at 1310 Emerald Drive and believe that it meets the setback requirements oft the code. She stated that they think that the right-of-way marker that staff used was not the correct one. She stated that Mr. Quick doesn'thave a survey ofthe property, but they feel it will meet the setback requirements ifit Chairman Sullivan asked Ms. Coyle to clarify where the Quick family did their measurements. Ms. Coyle stated that Mr. Quick could answer how it was measured. Chairman Sullivan stated that the Town asked for a survey sometime in April and it was never provided. She stated that there is not a survey of the property. She stated that surveys cost money. She stated that the Quick family figured that Town staff was measuring from the correct posts. She stated that they could be wrong. They do not think they are, but they Athan Parker stated that a survey would end the debate as to which measurement is accurate. He stated that the application is due to the potential encroachment of the setbacks. Ifthere is not a survey providing the measurements, how can the Board correctly act on this Ms. Coyle stated that Town staff didn'trequest the survey. She stated that it was an option. She further stated that surveys costs money and they wanted to try the variance application. She stated that they were assuming that Town staff had the correct measurements and the variance application seemed to be the appropriate move for the Quick family. Ms. Coyle asked the Board if the Quicks need to get a survey before a decision can be made on this application? Chairman Sullivan answered that for the applicant to provide evidence that Town staff measured wrong, the survey is required. He further stated that the answer cannot be T think." Ms. Coyle stated that is why they are requesting a variance. She stated, "lets assume that the Town measured it correctly, we are asking for a variance." Chairman Sullivan stated that there is a big difference between asking for a variance of 3 feet and asking for a variance of16 feet. He further stated that ifyou think the Town's measurement is wrong, then a survey should be required to finalize that determination. Ms. Coyle stated  violation oft the setback requirements.  isi measured from the proper. posts.  could be. She also stated that a survey could verify the measurements.  application?  that she would like Mr. Quick to provide his testimony.    Mr. James Brent Quick, property owner of 1310 Emerald Drive continued the applicant's testimony. He stated that he resides in Wake County fulltime and they have owned the home since 1986. He provided the Board with photos of the site. Mr. Quick stated that at no time was it their intent to remove the deck. He stated that the initial intent was to do some maintenance work on the deck, and it just collapsed. He stated that the deck has been on the home and been repaired numerous times since 1973. He stated that their goal was to raise the deck, support it, remove the damaged and substandard poles, and install new posts that will run up through the substructure and they could attach handrails for safety purposes. He stated that he has a grandson, and he wanted the home to be safe. He further stated that this deck is an integral part of the home since they have owned it. Mr. Quick stated that in the process of repairing it, they tried to raise the deck up to remove the poles. He stated that when that happened, the deck suffered a catastrophic failure. He stated that he did not get pictures of the deck on the ground because when it fell, it damaged the waterline and an emergency water repair had to take place. Mr. Quick stated that he applied for the permit on the gth and applied for a permit with Carteret County. He stated that his wife owns a masonry company who was hired to install the concrete posts. Mr. Quick stated that they had an unforeseen cancellation and can down to install the posts at 1310 Emerald Drive. Mr. Quick stated that he was not aware that they were going to do the installation and stopped it once he found out what was happening. He stated that if you go by the house Mr. Quick stated that they can down today for this meeting and decided to pull some measurements. He stated that they measured form the center of 58 Highway/Emerald Drive to the deck. He stated that he did not measure from the right-of-way marker but there is one at Raleigh Street and there is another one on the next street on the right, on the other side of 1312. He stated that you can clearly see that the right-of-way markers are in line. He stated that the is another post in the Weaver's yard. He stated that it is 39 feet from the centerline of the highway. Mr. Quick stated that they measured from the centerline of the road to the corner post of his deck, and it was 60 feet, 4 inches. He stated that they applied for a Carteret County permit, and it was accepted. He stated that he has a copy if the Board would like to see it. He stated that no work has been done since they were waiting on the Athan Parker asked Mr. Quick ifthey hired a licensed contractor to do the work. Mr. Quick stated that they did not. He stated that they took it upon themselves. He further stated that since it was not going to be attached to the home, it was just putting some poles in. Mr. Quick stated that he is pretty handy, but not a general contractor by any means. Mr. Parker asked Mr. Quick if he applied for any permit from the County on the poles. Mr. Quick stated that he didn't. He further stated that the County told him that he could make minimal repairs. Mr. Parker stated that any structural improvements to any structure in North Carolina is required a building permit. Mr. Parker further stated that poles supporting the deck would definitely be structural. Mr. Quick responded that when they contacted the County, they told him that if they were just making repairs, there was no need for a permit. Mr. Quick further stated that they did not detail any structural improvement with them. Mr. Quick stated that there is a building permit issued now and he can provide the Board a copy  right now you will see piles ofrock and mortar in the front yard.  variance application to take place.  ifthey would like to see it.    Mr. Quick requested the Board to accept the pictures previously provide do them along with the Carteret County Building Permit as the applicant's exhibits. Andrea Beasley made a motion to accept the photographs into record for the applicant's exhibit. Susan Monette seconded the motion. The Board voted unanimously (5-0) to approve the motion. Ty Cannon made a motion to accept the Building Permit into record for the applicant's exhibit. Susan Monette seconded the motion. The Board voted unanimously (5-0) to approve the motion. Chairman Sullivan stated that on the Building Permit, the estimated costs are $12,000. He stated that is not minor repairs. Mr. Quick responded that estimate was after the deck collapsed. Athan Parker stated that the Building Permit has not been signed by the applicant. Mr. Parker stated that he is not being picky, the building permit has to be signed by the applicant to be official. Mr. Quick asked the Board ifit would be OK to sign the permit. The Board stated that they were OK Susan Monette stated that she was with the understanding that ift the work is not over 50% of the value oft the structure, you would not need to meet the standard. She stated that you are rebuilding actually exactly what was there, I do not understand why this project does not: fall into that. Mr. Seaberg stated that the 50% rule" comes intoj play on various situation such as floodplain administration. He stated the application before youi is for a situation where there was deck at one time. There is not a deck there now. He states that this is a nonconforming structure by definition in the Emerald Isle Unified Development Ordinance. Mr. Seaberg stated that inl his Exhibit #5 is an exact "copy and paste" oft the code as written. He stated that Section 8.40 ofthel Emerald Isle Unified Development Ordinance states "Nonconforming structures may bei improved or expanded, provided that any addition to, improvement to or expansion oft the nonconforming building must comply with the minimum front, side and rear yard setbacks as well as other dimensional requirements for the district in which it is located, and the addition to, improvement or expansion may not increase the nonconformity of the structure. Whena a nonconforming structure is damaged by fire, flood, wind, act ofGod, or condemnation proceedings, the structure may only be repaired and restored to its original dimensions and conditions provided less than fifty (50) percent oft the structural fair market value has been Ms. Coyle stated that they feel that this project should fall into the definition of an act of God under the nonconforming structure reading that Mr. Seaberg provided. She stated that this deck has suffered "acts of God" for 51 years. Chairman Sullivan stated that the ordinance states that you can repair, not replace the structure. Ms. Coyle stated that Mr. Quick was trying to repair it and it fell apart. Athan Parker stated that access can still be granted to the front door with the permissible 3-foot encroachment of an unroofed structure per the code. Mr. Chairman Sullivan asked Mr. Quick ifhe needed 16 feet to get access to the front door. Mr. Quick responded that the 3 feet that was suggested by Town staff doesn't provide enough clearance to open the storm door. Chairman Sullivan stated that the application is for a 16-foot variance. You could have access to the property with a 6-foot variance. Mr. Quick asked the Board how setbacks are measured. He asked ifit was measured from the center oft the street. Athan Parker responded that the setbacks are measured from the right-of-way markers.  with] him signing the permit.  damaged."  Parker stated that the Quick's still can have access to the front door.    Mr. Seaberg wanted to remind the Board and the audience that the staff report provided the method in which staff measured the distance oft the house from the front property line. He further stated that in Exhibit #2, there was screen shots oft the Carteret County GIS map showing the property lines of 1301 Emerald Drive along with a measurement showing the 30 Chairman Sullivan asked the Board members ifthey have enough evidence to make a decision on this matter. Members of the Board stated that they have not seen enough evidence. Chairman Sullivan stated that a survey would be need as part oft the evidence. Susan Monette stated that the local surveyors have a 3-4-month backlog. Chairman Sullivan stated that he Ms. Coyle stated that she wanted to make aj point. She stated that ifa windstorm occurred and blew this deck down, it wouldn't be an issue. Chairman Sullivan stated that was necessarily the case. He stated the 50% rule still comes into play. Jill Quattlebaum stated that the position the Town would take on that is that the deck is not part ofthel house. Ifthe deck is damaged more than 50% ofits value, it would need to comply with the current codes. She stated that the deck does not meet the current setback requirements and are considered a nonconforming structure. She stated that going back to what the ordinance stated in this situation, "ifthe damage is more than 50% ofthe value oft the structure, you cannot rebuild it in the same footprint". Ms. Coyle stated that when her client bought the house, the deck was sitting it its location. She stated that was a hardship that he could not rebuild in the same footprint. Susan Monette stated that it is wrong to take away someone's s property. Mrs. Quattlebaum stated that is the purpose ofthe nonconforming portion oft the code. She stated that if code changes and a structure, use, lot, ect. Is no longer in compliance with the code, iti is allowed to continue within the parameters in the nonconforming portion oft the code. Ifthere is significant changes, the site must come into compliance. She further stated that ift there is a concern with the way the code reads, the only way to legally fix iti is through at text amendment. She states that the Planning Board could recommend such change, but it would not affect the case that the Board of Ms. Coyle stated that the house was not damaged beyond 50%. Athan Parker stated that this case is pertaining to the nonconforming structure. He stated that deck is nonconforming and if the deck is damaged or repaired more than 50% ofit value, it has to come into compliance. Susan Monette stated that is the entry to the home. Athan Parker stated that entry to the home can still be secured with a three-foot staircase that is compliant with the codes. Chairman Sullivan stated that he has worked on decks for many years inl Emerald Isle. He knew that he could repair but not replace ifa a client had a similar situation. Chairman Sullivan stated that itis always recommended that a permit be secured before removing a deck to avoid situations such as this. Susan Monette stated that the applicant did not intend to: remove the deck, it fell after trying ton make repairs. Athan Parker stated that the applicant was still performing work without a permit. He stated that the State law is clear. Ifthere is structural work being performed, it doesn'tmatter ifit costs $1 or $100,000, a permit must be secured. Chairman Sullivan stated that there can be adequate access to his home without a 16-foot variance. Susan Monette stated that you are still taking away his property. Andrea Beasley stated that was the same argument when the Planning Board recommended the reverting the code change on oceanfront side yard setbacks earlier this year. Andrea Beasley stated that the applicant just wants the same house,  foot mark match what staff was able to replicate on ground.  feels he could not: make a decision on this matter without a survey.  Adjustment is hearing tonight.  and he wants it tol be safe.    Ms. Coyle stated that the Board can grant a variance on this situation. Athan Parker stated that granting the variance is based offoff factual information in which has not been received tonight. Ty Cannon agreed with Mr. Parker and stated that he has heard opinions on the issue versus facts. Mr. Cannon further stated that is why it is important that the Board is provided a survey before rendering a decision on this matter. Athan Parker suggested that the survey could show any changes to the right-of-way through the years as NCI Department otTransportation might has acquired more since this structure was built. He stated that might provide some sort ofhardship. Mr. Parker stated that, at this point, the Board does not have all the data they need to decide tonight. Ms. Coyle asked ift the inability to access the front door was not a hardship. Athan Parker answered that her client still has the option to construct the three-foot access per code. Athan Parker made a motion to table a decision on this case until the applicant provides a survey to support their request. Andrea Beasley seconded the motion. The Board voted unanimously There being no further business to come before the Board, a motion to adjourn was made by Athan Parker.. The motion was seconded by Andrea Beasley and passed unanimously (5 to 0).  (5-0) to approve the motion.  Ther meeting was.adjourped: at 7:20P PM. LE  Board  pelkh  Secretary  Chairman