Board of Zoning Appeals

CITY OF NORTH MYRTLE BEACH, SOUTH CAROLINA NORTH MYRTLE BEACH CITY HALL BOARD OF ZONING APPEALS SPECIAL CALLED MEETING Thursday, September 3, 2021 1:30 PM MINUTES William McGonigal, Chairman City Staff: Roger Quinn, Vice-Chairman Ben Caldwell, Zoning Administrator Mendel Bell Chris Noury, City Attorney Cynthia Lover Allison Galbreath, City Clerk Joe Reaves Andy Thomas, Absent until Agenda Item 3 Wyman Wise 1. CALL TO ORDER & ROLL CALL: Chairman McGonigal called the meeting to order at 5:03 PM. 2. APPROVAL OF MEETING MINUTES: Chairman McGonigal called for a motion to approve the minutes of the August 12, 2021 meeting. The motion was made by Mr. Reaves and seconded by Mr. Quinn. The motion passed 6-0. 3. COMMUNICATION: Mr. Caldwell stated he received three emails relating to Appeal #A1-21 after the packets had been sent out. He distributed copies to the Board. 4. OLD BUSINSS: None 5. NEW BUSINESS: A. SWEAR IN THOSE PERSONS TO SPEAK: Mrs. Galbreath swore in persons to speak at the beginning of the meeting. B. APPEAL #A1-21: Appeal by the Tidewater Plantation Design Review Board of a decision of the Zoning Administrator that a proposed cupola on the roof of a proposed home is a necessary mechanical feature. The location of the property is 4628 South Island Drive. Mr. Quinn recused himself from the discussion and vote due to a conflict of interest. The Commission and staff discussed the parameters in which a decision would be made and to determine what a necessary mechanical feature would be, as it related to this appeal. Mr. Caldwell read the appeal and description. Mr. Caldwell explained a necessary mechanical feature was not defined in the City’s Code. Ms. Lover asked how he determined this was a necessary mechanical feature. Mr. Caldwell explained the applicant was going to use it for roof top access, it had an operable window, and there were latches to attach harnesses for safety. Ms. Lover asked if there was a stairway inside. Mr. Caldwell explained there was and it was detailed in the drawings. It was explained to him that a ladder would not be able to get that high up to reach the roof from the ground. The contractor explained the ladder would have to be over 45 feet in order to reach. Amanda Bailey, attorney for the Tidewater Plantation Design Review Board (DRB), stated the issue before the Board was to determine if this was a necessary mechanical feature. The cupola set much higher than others in the neighborhood. She stated it was not 1 necessary nor mechanical under the Code. Ms. Bailey stated they had been pointed to Code 23-106, which provided an exception to height, provided it was a necessary mechanical feature. She stated it should fall under Code 23-165, which did not give a definition for necessary nor mechanical. It did point the Board to the Uniform Mechanical Code, Uniform Building Code and the State statutes to supplement the City Ordinances. Ms. Bailey related the Uniform Mechanical Code definition, which did not apply to windows. The Building Code applied to windows. Ms. Bailey stated this cupola had a full set of stairs to access the roof for purposes of viewing. She stated it was not necessary, because there were other ways to reach the roof to perform maintenance. The design of the house could have other features to reach the roof. It did not require a necessary mechanical feature, but was a decorative feature. Ms. Bailey stated the building permit was typically issued to the DRB and that had not been done in this case. She stated they were working backwards in this case. The height far exceeded the PUD height requirements, the Tidewater restrictions, and any of the other buildings in the neighborhood. The Board and Ms. Bailey discussed the heights of where the measurements were to be taken and the limitations of heights under the PUD and Tidewater restrictions. Dave Jeffers, Chairman of the DRB, stated the height should be 41 feet and stated the City told him they would abide by it. He stated 17 other homes had been built and all had been built at a maximum of 41 feet. He stated the original plans they saw had no door or operable window. The height the homeowner was requesting far exceeded the requirements. Mr. Jeffers stated when they came down to City Hall to discuss this, they had not been told a building permit had been issued. He had an issue with this. He wanted to be sure they were making the correct decisions. The DRB had rejected the plans based on what they were told by the City and the height requirements of the DRB. Alan Clemmons, attorney for the homeowner, stated the issue was independent of a measurement of height. It was a question of whether the access to the roof was a necessary mechanical feature of the home. He pointed out the access structure was on the wrong side of the house to be a viewing area. The home had other ample views of the waterway and this was not one of them. The structure was to provide roof access, because it would be difficult to find a ladder to provide access to the roof. Most service companies would not use a ladder to go to this height. Mr. Clemmons gave a Google definition of necessary mechanical device. This was not only to provide access, but safe access, which was necessary and the Zoning Administrator did not err in his findings. Sheri McAllister, attorney for the homeowner, added that this home had been envisioned since 2017 and extensive research had been done in making these home plans, including how to appropriately maintain a roof in the SC climate with potential storms. The cupola was appropriate and less than the ordinance required, only 12% of the roof line. The stair well was not obvious and hidden in a secondary bedroom behind a bookshelf. It was strictly for obtaining access, not for viewing purposes. Ms. Lover asked if this provided access to the entire roof or just a portion. Jason Heady, owner and builder with Grand Strand Contracting and for the homeowner, stated he had been a custom home builder in Tidewater since 1999. He stated there were safety considerations and explained the safety and maintenance reasons behind the design. Mr. Reaves asked why the original plans did not have working windows. Mr. Heady explained they were a conceptual version that was submitted for conceptual approval and it was always planned to have a working window, which was put into the final plans. Ms. Lover asked if they couldn’t just make it lower. Mr. Heady stated they would not be able 2 to lower it because it would go below the front elevation line and the windows would not be symmetrical around. The Board, staff, and attorneys discussed the design options and if it was a necessary mechanical feature per the Uniform Mechanical Code (UMC) or Mr. Clemmon’s Google definition. Mr. Heady suggested he could put the air handler in there if it would make it a necessary mechanical feature. Mr. Bell asked if the DRB approved the plans and why were they circumvented. Mr. Heady steady they had not approved them and they were submitted to the City to make sure they were in compliance. The Tidewater DRB was not following the PUD and the changes to the flood plain. Mr. Noury explained that this was not in the scope of what they were to determine in the appeal. They only needed to determine if this was a necessary mechanical feature. Mr. Reaves pointed out if this was approved, it opened the door to anyone building above the height requirement and calling it a necessary mechanical feature to circumvent the height requirements, because there was no definition. Mr. Noury provided Ms. Bailey with a copy of the UMC. Mr. Clemmon’s stated Mr. Heady was offering up a scenario of having a mechanical feature that would fit the definition of what Ms. Bailey had in her mind, under the UMC. He stated the Board was not bound by the UMC and their definition. He stated the Board’s definition was much broader. Ms. Bailey read the definition of mechanical systems from the UMC. There was not a definition of mechanical feature. Ms. Lover pointed out this was a mechanical feature, not systems. Mr. Clemmon’s pointed out the UMC did not have an exhaustive list. He stated the Board’s definition must encompass a larger definition of what a necessary mechanical feature was. Chairman McGonigal asked if this had been an issue in the past. Mr. Caldwell stated he didn’t recall this from the past. There have been incidents of church spires and elevators, determining them as necessary mechanical features, but not something this specific. Mr. Reaves pointed out that what needed to be determined was if having roof access meant it was a necessary mechanical feature. The Board discussed how this could set a precedent and what the height requirements were and where they were measured from in this case. Mr. Noury stated the Board needed to determine whether Mr. Caldwell made the correct decision in determining this was a necessary mechanical feature. The driving factor should not be how a precedent could be set in this appeal. Mr. Clemmon’s stated the Council could address the definition of necessary mechanical feature with introducing legislation to prevent a precedent setting scenario. He read a part of the code which stated height limitations should not apply to chimneys, church spires, water tanks, or necessary mechanical features not occupying more than 15% of the roof area. If it was a chimney or water tank, the Board would not be here on this issue. Mr. Norton’s architect relied upon this definition to design the home. Mr. Bell stated Mr. Norton knew there were restrictions from Tidewater and inquired why he didn’t work directly with the DRB. Mr. Norton explained they read the standards and the architect, which worked with Tidewater previously, agreed with the plans. Ms. Bailey stated the DRB had no plans to review and did not issue a permit. Mr. Norton had circumvented this process and the compliance would be decided by a different court. She stated the architect knew he was not in compliance nor met the guidelines of the DRB. Mr. Norton stated the plans were submitted and to the building department. Mr. Jeffers stated he and the co-chairman came to the city on January 14 and spoke to Delane Stevens about the flood zone and what level South Island was. He stated they asked about the cupola’s measurements and Mr. Stevens stated it did not constitute a cupola. They asked the city because they were volunteers and wanted to understand based on the guidelines of the city. They then reviewed the 3  plans and denied them on 10 points and asked for new plans. The plans they had did not show a door or an operable window. They have not received new plans. He stated they went back to the city and asked why a building permit was granted if it didn’t agree with the PUD. That’s when Mr. Jeffers submitted the appeal to the BZA. Mr. Norton stated what Mr. Jeffers said was irrelevant to what the Board was looking at. He stated there was no compelling evidence to show that Mr. Caldwell made a mistake. The DRB information was irrelevant and He didn’t believe there was enough evidence to show Mr. Caldwell made a mistake. Chairman McGonigal called for a motion. Ms. Lover motioned to deny Appeal #A1-2, because she believed this was a necessary mechanical feature and affirm the ruling of the Zoning Administrator. Chairman McGonigal seconded the motion. Mr. Reaves stated there were two parts, if it was a mechanical feature and if it was, was it necessary. Mr. Wise stated he wanted more information on how people in Tidewater would access their roof and height dimensions. Chairman McGonigal asked if the roof met the acceptable height requirement. Mr. Caldwell stated the roof height met the standard, but the cupola was way above it. Ms. Bailey stated there was a motion on the floor and it was not appropriate for additional testimony. Ms. Lover withdrew her motion. Mr. Heady stated this particular house was three stories with covered porches. There were no decks sticking out to put a ladder on to gain roof access. He stated a ladder would need to be at least 48 feet long and sit on the ground, making roof access necessary. He stated 90% the homes in South Island had decks that gave access to the roofs. This house did not. Ms. Bailey stated this house was different because of the height of it. The other houses in Tidewater that had been built met the height restrictions and this one did not. They were wanting to be bigger and better than all the other homes. Ms. Lover asked if it was the owner’s choice to build at this height. Ms. Bailey stated that was correct and this was a design feature. Chairman McGonigal called for a motion. Mr. Reaves motioned to grant Appeal #A1-2, determining it was not a necessary mechanical feature and was seconded by Mr. Thomas. The motion to grant the appeal passed 6-0. Vice-Chairman Quinn requested a recess until 3:17 PM. E. VARIANCE #V26-21: Application by Phillip Hornbeck for a variance to remove trees greater than 24” in diameter on a vacant lot proposed for development at 10500 Highway 90 at the corner of Robert Edge Parkway and SC-90. Chairman McGonigal recused himself from the discussion and vote. Rob Wilfong, represented the applicant, and stated they were putting a 360 unit apartment complex at the intersection of Robert Edge and Highway 90. This site took considerable drainage from the DOT and they were trying to reroute the ditch, where the trees were located. They were largely sweetgum and magnolia trees. He stated they submitted a preliminary landscape plan to demonstrate the replacement. Ms. Lover and Mr. Noury discussed a procedural question about this item appearing on the special called meeting versus the next scheduled meeting. Ms. Galbreath read the minutes which stated the motion was moved to the next scheduled meeting. Mr. Noury stated they were in compliance, because this was the next scheduled meeting and notification had occurred. 4  Mr. Wilfong and the Board discussed where the trees were going to be removed. Ms. Lover wanted to know where they were going to replant 1,072 inches of protected trees, plus the ones that were not protected they had to replant. Mr. Caldwell stated he did not have the calculations of how many inches of trees that needed to be replaced. The plans he saw were heavily landscaped, but no dimensions were in the plans. Ms. Lover stated to grant a variance, they needed to have a tree replacement schedule. She wanted to see replanting of trees, instead of having money given to the Tree Bank. Ms. Lover wanted to know where the trees would be going, there didn’t seem to be enough land left over to replant the trees. The Board, applicant, and staff discussed the site plans and where the trees would be planted. Mr. Wilfong assured the Board they would have room to replant the trees, including around the buildings and common areas between the buildings. Mr. Reaves inquired if their intention was to replace the trees. Mr. Wilfong stated that was their intent. Mr. Caldwell read the description of the request, the ordinance, and recommended to hear the variance. Vice-Chairman Quinn called for a motion. Ms. Lover stated the applicant had petitioned for a variance for the removal of 1,072 inches of protected trees, in addition to the ones that were not protected. Ms. Lover motioned to grant Variance #V26-21 with the proviso to replant 1,072 inches of trees or pay $107,200 to the Tree Bank or a combination thereof. The protected replacement trees must be hardwoods, oaks, maple, or hickory. If 1,072 inches of trees could not be placed on the property, then the difference must be paid into the Tree Bank. The motion was seconded by Mr. Wise. Mr. Noury clarified this was in addition to the other trees that were not protected. Ms. Lover stated it was in addition. The motion passed 6-0. F. VARIANCE #V27-21: Application by Mark Stoughton, Jr. for a variance to remove trees greater than 24” at 1170 Possum Trot Road zoned Planned Development, PDD District. Sean Hoelscher, Landscape Architect and Engineer for the applicant, stated they were requesting to remove 91 inches of dead trees and 10 additional trees, measuring 315 inches, for a total of 406 inches. He stated the hardship was the uniqueness of the property and they could not work around the trees due to drainage and the placement of buildings. Ms. Lover stated she walked around the property. She had pictures showing a couple of single trees, which were pine, that were surrounded by a fence. She asked how they determined what trees they left standing. It was her understanding that they could not clear cut the property. Mr. Caldwell stated they were not being clear cut and there were trees on the property. Ms. Lover stated they left trees around the perimeter, but not much within the property minus the one pine tree and another single tree by itself. She stated after the issue they had with the developer behind Publix, she didn’t believe they could cut and needed to pull permits for each lot. Mr. Caldwell stated it was a little different, because those lots had already been created. He stated it was not technically being clear cut because the trees were in the buffer and permits were issued for grading work. Mr. Hoelscher stated the trees being cut were a part of the arborist’s original report. A clarification of a total of 408 inches were proposed to be cut. Ms. Lover asked if they had a plan to replant trees on the lots. Mr. Hoelscher stated they would provide a mitigation and replacement plan, but did not have those plans to date. Mr. Caldwell stated he had not seen the plans, but expressed that the HOA of Palmetto Harbour had expressed a concern about the buffer not being large enough. 5  Mr. Caldwell read the description of the request, the ordinance, and recommended to hear the variance. The Board, applicant, and staff discussed the placement and kinds of replacement trees. Chairman McGonigal called for motion. Ms. Lover motioned to grant Variance #V27-21 to remove 408 inches of trees, providing a replacement of 408 inches of trees or pay $40,800 into the Tree Bank or a combination thereof. There must be 108 inches planted in the buffer and at least one 3-inch caliper tree per lot. The replacement trees must be hardwood, oak, maple, or hickory not pine, fir, or Bradford pear. Mr. Quinn seconded the motion. The motion passed 7-0. Chairman McGonigal called for a motioned to adjourn. The motion was made by Mr. Bell and was seconded by Mr. Reaves. The motion passed 7-0. The meeting adjourned at 4:13 PM. Respectfully submitted, Allison K. Galbreath City Clerk NOTE: BE ADVISED THAT THESE MINUTES REPRESENT A SUMMARY OF THE BOARD OF ZONING APPEALS MEETING AND ARE NOT INTENDED TO REPRESENT A FULL TRANSCRIPT OF THE MEETING. 6