Board of Adjustment

Town of Swansboro Board of Adjustment Special Meeting Minutes April 17, 2024 Call to Order The meeting was called to order at 5:34 pm. Board members in attendance were: Ralph Kohlmann, Wayne Mixon, Thomas Pieratti, Tom Cariker, Elaine Justice. John Fitzgerald was absent. The board had 1 ETJ vacancy. Minutes On a motion by Mr. Mixon, seconded by Mr. Pieratti, the minutes from the April 19, 2023, Special Meeting were unanimously approved. Witnesses Sworn in Planner Andrea Correll and Kirby Lee Everette Jr. were sworn in by Deputy Clerk Cuadro. Business Appeal of an Administrative Decision Town Attorney Francis Rasberry reviewed that Kirby Lee Everette Jr. had filed an appeal of an administrative decision related to his property located at the corner of Walnut Street and Spring Street (tax pin number 536410369140) which was being used for the purpose of boat storage was in violation of Section 152.170 and 152.179 of the Town’s Unified Development Ordinance. Planner Correll introduced herself and shared that she had a master’s degree with 36 years of Planning and Code Enforcement experience. Planner Correll stated that on September 6, 2023, an anonymous written complaint was received by mail regarding a trailer storage on the lot at the corner of Walnut Street and Spring Street. In response to the violation, Planner Correll mailed a certified letter of violation on September 18, 2023. She further shared that in October of 2022, she called Mr. Everett and informed him that she did code enforcement by complaint and if she received a complaint, she would have to address the trailers on the vacant lot. Planner Correll indicated that when she received the complaint she referred to the Unified Development Ordinance in Section 152.170 Establishment of Zoning Districts, and the purpose thereof (D) R-6SF, the purpose of this district shall be that only permitted structures shall be permitted in this district and Section 152.179 the Table of Permitted Uses (E) Districts in which particular uses were prohibited and were indicated by a blank. Docks, and piers (not commercially operated, with or without launching facilities) were a permitted use in R-6SF district. The primary purpose of the district was a dwelling. In response to inquiries from the Attorney Rasberry, Planner Correll clarified the following: − The notice of violation was mailed to Kirby Lee Evertte Jr. and was also included in the agenda packet on page 37. − In the notice of violation letter Section 152.170 Establishment of Zoning Districts, and the purpose thereof (D) R-6SF was referenced, and the purpose of this district was that only single-family structures were permitted. − Per Section 152.179 (E) districts in which particular uses were prohibited were indicated by a blank in the Table of Permitted Uses. Page 1 of 6  − It was the town’s determination that based on Sections 152.170 and 152.179 that storage of trailers and boats were prohibited in a residential district on a vacant lot. − On the notice of violation, Section 152.016 definitions of basic terms were included to clarify what uses boat/trailer would be permitted under. − Boat/trailer storage was only permitted as an accessory use to a principal use and the property was a vacant lot with no residential structure. − Accessory use was a use incidental to and located on the same lot as a principal use. − As Town Planner she was involved in the enforcement of the zoning ordinance of the town jurisdiction. − In the Towns’ residential districts, two accessory structures are allowed as well as the incidentals like a car or a boat. − The parking of a boat or a trailer would be considered an accessory use to a residential use. − An anonymous complaint was received by mail on a white typed piece of paper delivered to the Town Hall. − It was not uncommon to receive complaints written in the same format or by phone without identifying themselves. − Planner Corell felt confident that that she had enough experience with code enforcement. − Larger municipalities hire zoning code enforcement officers that seek violations. Smaller towns like Swansboro process code enforcement violations by complaint. − The recent text amendment to Section 152.016 Definitions to Basic Terms was updated because staff felt the definitions of “Marina” were left out during the 2018 update when the definition of “Docks” was added. This was not related to this case. − The zoning district of B1 was Highway Business, and MI was Light Industrial, and the storage of boats and trailers was only permitted in B1 and MI zones. − There were no civil penalties imposed for this violation on Mr. Everette. − A photo of the violation was taken with a phone but after 30 days it was accidentally deleted. − Pictures from the GIS/Google website captured violation in multiple years which are included in the agenda packet. − When dealing with violations the Unified Development Ordinance was followed at all times. Attorney Rasberry requested that Planner Correll read out loud the following sections of the Unified Development Ordinance: − Section 152.011 subsections (A) and (B) no use or sale of land or buildings except in conformity with ordinance provisions. (page 2 of town attorney brief) attached herein as attachment A. − Section 152.016 Accessory use, and Accessory Structure (page 4 of town attorney brief) attached herein as attachment A. Attorney Swart submitted documents to Deputy Clerk Cuadro to enter into the record as evidence, attached herein as Attachment B. Town Attorney Rasberry requested to review the documents before they were submitted into the record, due to not being provided with the documents before the board meeting. Mr. Kohlmann granted his request. Page 2 of 6 Mr. Swart introduced himself as the attorney for the appellant Mr. Kirby Lee Everette Jr. In response to cross-examination inquiries from Attorney Swart, Planner Correll clarified the following: − She served as Planner with the Town of Swansboro from 2016 to 2019 and returned in October of 2022. − Served as the Planner in Burgaw before relocating back to the Town of Swansboro. − She was experienced with code enforcement on vacant lots in the residential districts. − She did not have any reservations or uncertainties about the code enforcement issue regarding the vacant lot on Spring Street and Walnut Street. − The violation letter expressed that the primary use of this property was a dwelling R-6SF. − She expressed confidence in her decision and mentioned that she had discussed it with Attorney Swart prior to the Board of Adjustment meeting. − Mr. Everette came to Town Hall in the fall of 2022 to obtain a permit for his dock. During that visit, she took the opportunity to inform Mr. Everette about the town's code enforcement process. The Town of Swansboro has a complaint-based code enforcement system. This meant that the town only takes action on violations when they receive a complaint from a concerned citizen. In this case, she stated that as of that date, they had not received any complaints about the trailers on Mr. Everette's vacant lot. She made it clear that if they were to receive a complaint about the trailers, they would be required to send out a notice of violation. She believed that Mr. Everette understood the situation and the town's code enforcement process. − A courtesy call was made by her to Mr. Everette to notify him that the violation letter was mailed. − Prior to the phone call she only had one conversation with Mr. Everette about the trailers on his vacant lot and that was in the fall of 2022. − In the Fall of 2022 Mr. Everette explained to her that the jet ski trailers belonged to his brother in-law. He was informed at that time that he could not use his vacant lot as storage for others. − She was aware of the violation and expressed to Mr. Everette that the town only did code enforcement by complaint in the fall of 2022. − An anonymous complaint letter was received, and it was included in the agenda packet. − The anonymous letter was truly anonymous and she nor anyone else knew who sent it. It came in the mail to the front office, and it was hand delivered to her on a white typed paper with the date. − She was unaware of what type of motivation the person had when they mailed the anonymous letter to Town Hall. − There was a requirement for the Planner to investigate any complaint whether it was anonymous, or not. It does not matter if the letter was signed or not. − North Carolina General Statue 160D had different methods on the code enforcement process. − Having previously worked as a Planner from 2016 to 2019 and lived in the area she walked around the area frequently. − Prior to September 2023 there had not been any violations on a vacant lot. Page 3 of 6  − The outline of the code enforcement process was addressed in the notice of violation and was provided when Mr. Swart made a public records request. − It was implied in the Unified Developmental Ordinance that you can maintain on a residential lot an accessory use to a dwelling, examples were a car or a boat. − In the Table of Permitted Uses Section 152.179 (E) districts in which particular uses were prohibited were indicated by a blank. − The Planner’s responsibility was to review the code and interpret it. − There would not be a notice of violation for a garden because it was not a structure. − There was no indication of whether Mr. Everette was using the lot for commercial storage. − When a complaint letter was received a notice of violation was mailed. − She did not imply that Mr. Everette was operating a boat storage. She defined what was storage and marina to give him an example of what was clearly in the ordinance. In response to further inquiries from Attorney Rasberry, Planner Correll clarified the following: − It was the Clerks responsibility to maintain records from the municipality as well as the boards, and those records were public records. − Anonymous letters were public records. In response to inquiries from the board, Planner Correll clarified the following: − In the Table of Permitted Uses 152.180 Note 7 Accessory Uses and Structures, it outlined the specific rules and regulations for what types of uses and structures were allowed. − Section 152.016 Definitions to Basic Terms defines “Accessory Structure”. − Regarding the definitions of accessory use and accessory structure, it was the use that was being discussed. The use of storage, trailers, and boats was not in the Table of Permitted Uses or in the definitions and that was where her decision was based. Mrs. Justice stated that she does not believe the way the ordinance was written takes away Swansboro’s right to interpret boats, and boat trailers as being part of the culture. Attorney Rasberry did not have any objection to the documents provided by Attorney Swart to be entered into the record. Attorney Rasberry also entered into the record; certified copies of each ordinance provision in their entirety attached herein as Attachment C. Attorney Swart had no objection to entering those items into the record. Attorney Swart requested that Mr. Everette of 305 Walnut Street be allowed to speak. In response to inquiries by Attorney Swart, Mr. Everette clarified the following: − He confirmed that he was the owner of the Walnut St and Spring Street vacant lot and had received the notice of violation from the town. − The trailers were moved from his lot after he received the notice of violation. − No fees had ever been charged to anyone to park their trailers on his lot. − His brother-in-law parked his trailer on his lot after he was told not to and was asked to remove it two days later. − He stated that he had parked his trailers on the lot for at least the last 12 years. Page 4 of 6  − The lot had always been well kept. − He never received any complaints from his neighbors about parking the trailers on his lot. In response to inquiries by board, Mr. Everette clarified the following: − Three of his boats remain at the pier and the trailers were parked in his vacant lot. − In order to store his trailers, he had to drive two hours from Swansboro to his other residence in Rocky Mount. − The boat trailers were used only when he needed them, the boats were docked at the pier. − He confirmed that he had continuously parked his trailers on the vacant lot since purchasing it in 2012. Mr. Kohlmann read Section 152.049 of the Town Unified Development Ordinance, for the board as captured below. § 152.049 BURDEN OF PROOF IN APPEALS AND VARIANCES. (A) When an appeal is taken to the Board of Adjustment in accordance with § 152.030(C), the administrator shall have the initial burden of presenting to the board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion. (B) The burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth in § 152.046, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance. (Ord. 2005-O3, passed 3-15-2005) Mr. Cariker stated that a complaint had been made and the town had to address it. It did not matter how long Mr. Everette had been parking the trailers on his vacant lot. This was a violation of the town’s UDO. The town had zoning for a reason. Mr. Kohlmann further stated that the UDO was clear on what was allowed. Section 157.179 clearly states that it was prohibited. The Table of Permitted Uses under the R6SF zoning district was blank, therefore parking his boat trailers there as storage was prohibited making it a violation of the zoning area. Mrs. Justice thanked Planner Correll for her service to Swansboro and stated that she appreciated her honest interpretation as a Planner. She furthermore stated that she did not consider this violation to be a storage violation. In her opinion, the trailers were parked there intermittently and would like the Board of Commissioners to address the zoning ordinance in the future. On a motion by Mr. Mixon, seconded by Mr. Kohlmann, the appeal was denied, and the administrative decision was upheld in relation to the boat storage violation on a vacant lot Page 5 of 6 located at the corner of Walnut Street and Spring Street further identified as tax pin number 536410369140 and was in violation of Sections 152.170 and 152.179 of the Unified Development Ordinance. The motion passed 4:1. Ayes: Mr. Kohlmann, Mr. Cariker, Mr. Mixon, Mr. Pieratti No: Mrs. Justice Adjournment On a motion by Mr. Kohlmann, seconded by Mr. Cariker, the meeting was adjourned at 8:04pm. Page 6 of 6 Attachment A Attachment B Attachment C