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TOWN OF OCEAN VIEW BOARD OF ADJUSTMENT JANUARY 17, 2008
Chairman Dick Logue called the meeting to order at 6:00 p.m. with Board Member Tom Sylvia in attendance. Town Administrative Official Charles McMullen and Town Solicitor Dennis Schrader were also present. Board Member Bill Olsen was not able to attend because of illness.
1. The Pledge of Allegiance was recited.
2. There were no changes to the Agenda. Tom Sylvia made a motion to approve the agenda. Chairman Logue seconded the motion, and it was approved unanimously.
3. There were no changes to the Minutes. Tom Sylvia made a motion to approve the minutes from the October 18, 2007, and the November 15, 2007, meetings. Chairman Dick Logue seconded the motion, and it was approved unanimously.
4. Old Business
5. New Business
A. Public Hearing Application V-220, a request for a variance from Article VI, § 222-21.2 of the Ocean View Code submitted by Dirickson Landing Associates, which is seeking a variance that will permit the construction of a dwelling within the 25 foot wetlands’ setback on property located at 6 Tingle (099.360) Rebecca Tribillis, attorney for Dirickson Landing Associates, served as the spokesperson. She explained that that applicant is seeking a variance from §222-21.2 of the Code, which imposes a 25 foot buffer zone setback from all wetlands. She referred to the survey that shows the proposed dwelling and dock that the applicant wishes to construct on the property. She explained that the home will not encroach into the wetlands buffer but will require a variance because it is expected to go up to the wetlands’ line. Ms. Tribillis then referred to Section 222-6 of the Code and said that the original record plan for Kelly Estates, which includes this property, was approved by the Town in 1977. Dirickson Landing purchased this property in April 30, 2003, with the intention of building a home and dock on it. The wetlands buffer ordinance was adopted by the Town of Ocean View on December 7, 2004. The survey shows that as a result of this ordinance, 60% of the lot is unbuildable. She said that her client requests the variance based on the unique physical characteristics and irregularity of the lot as a result of the existence of the wetlands on the property. She said that the circumstances leading to the request are solely attributable to the existence of the wetlands and are not the result of any actions of Direckson Landing Associates. Ms. Tribillis said that granting this variance will not confer any special privilege on the applicant that would be denied to other properties in the area and noted that the Board approved a similar variance for an adjacent property at 4 Tingle Street on February 15, 2007, and went into very brief detail about that variance approval. She included a survey of that property and a copy of the Board’s decision for that variance. She noted that there are already many docks on both sides of Whites Creek and said that the inability to build a dock on waterfront property will significantly decrease the value of that property. She said that the construction of a walkway and dock will have minimal impact on the environment because they will be built on pilings across the wetlands. Ms. Tribillis said that it is appropriate to grant the variance because the it not contrary to the public interest, and the lot was created and purchased by the applicant before the ordinance was enacted; she noted that § 222-6 anticipates such a situation. She said that there are exceptional circumstances, which would cause exceptional practical difficulties and hardship to the applicant if the Code is strictly observed. She said that the applicant does not plan to put the house in the wetlands and will conform to all front and side yard setbacks. Relief can be granted without detriment to the public good, and granting this variance will not adversely affect the uses of neighboring and the adjacent property, which obtained a similar variance last year. She said that the applicant met the requirements of § 222-67, and the variance is the minimum necessary to afford relief. She said that they have two letters of support for the applicants and presented them to the Board. The Town Solicitor said that the letters from Wingrove and Justice and the book containing the deed, decision, and survey of the neighboring properties will be entered into the record. Town Administrative Official said that this application was noticed in The WAVE newspaper on January 2, 2008, and notices were sent to all property owners within a 200 foot radius of the property in question. Mr. McMullen then read from his overview and noted that the wetlands in question are State wetlands. He said that the northeast corner of the proposed dwelling box will be approximately 3 or 4 feet into the 25 foot setback area required from the State wetlands. The proposed boardwalk and dock at the end totally encroach into the State wetlands area, which is he reason that a variance is needed. Tom Sylvia questioned the reason for a 45 x 65 foot house and noted that it is a very large house that could be cut back. The Town Solicitor swore in Robert Kauffman, the applicant. Mr. Kauffman said that they cut 3 feet off the actual house plan, which was 68 feet deep. He said that it has 4 bedrooms, 3˝ bathrooms, a two-car garage, and a screened porch with a deck over it and noted that it is typical for a waterfront lot and is not at all excessive in relation to the value of the land. He reminded attendees that they are maintaining the 15 foot side setbacks and the 25 foot front yard setback. In answer to questions from Messrs. McMullen and Schrader, Mr. Kauffman said that the house will be three stories high including the ground level, will not be built on pilings, and will be 44 foot wide by 65 foot deep but 10 feet of the 65 feet will be porch. Mr. McMullen noted for the Board that the wetland delineation is digitized version of a 1988 photograph; it has no wetlands certification stamp from a certified wetlands expert. Mr. Kauffman presented two copies of a plat for two parcels that included the subject lot; both copies were certified by Kenneth Redinger; one was approved by Richard Blitz, and the other was approved by Bob Alexander. The Town Solicitor confirmed that Mr. Redinger did certify the existence of 404 wetlands on March 25, 2003. In answer to a question from Chairman Logue, Mr. Kauffman explained that the house does not encroach into the wetlands; it encroaches into the wetlands’ buffer established by the Town. He went on to say that the dock and walkway do encroach into the wetlands. Chairman Logue expressed concern that a variance in a case like this is only given if there is no alternative and said that there is an alternative; the house size could be decreased. In answer to a question from Chairman Logue and discussion about the extent of the encroachment, it was determined that the house would encroach about 7 feet into the wetlands buffer. The Town Solicitor swore in John McMillan, Ocean View, who said that he does not oppose this application and reminded the Board that when he and his wife made their application, which took a lengthy period of time, the Board members restricted the size of his footprint to 40 feet by 55 feet. He reminded the Board that it required him to remove some decking and move the house closer to the street. He said that he certainly would like to see Mr. Kauffman build on his lot but does not want him to receive any advantages that were not given to him and his wife. In answer to a question from the Town Solicitor, Mr. McMillan confirmed that the Board approved a 15 foot front yard setback for his house and went on to explain that with his application for a variance, the Board asked that his house be moved closer to the street because of the mean high water line. Mr. McMullen then read portions of § 222-31.2 and explained that the initial interpretation of the Code was that the buffer zone was 25 feet from all items mentioned in § 222-31.2. B.; i.e., all wetlands and all mean high water lines; however, it has since been determined that the wetlands are only from the private or State wetland line; this went into effect with Application V-195. A brief discussion followed, and Mr. McMullen stated that the plat shows the house is located about 18 feet from the State wetlands and the highest mark indicating an edge of water—the mean high water line. He stated that there is a 7 foot encroachment on the northeast corner and about a 6 foot encroachment into the mean high water line and went into some detail about these encroachments for meeting attendees. In answer to a question from Chairman Logue, Mr. McMullen explained what would be needed for the applicant to conform to the Town ordinance. There were no questions from the public. Tom Sylvia made a motion that the house should be 44 by 58 feet. The Town Solicitor explained that the motion could not be made in this way. The motion could say that the Board approves a variance of a specific distance into the setback but cannot dictate the size of the house. After some discussion because Tom Sylvia said that he did not wish to grant the 7 foot intrusion, Chairman Logue suggested that he move to deny the request, and the applicant would have to return with another application or build a house that conforms to the existing laws. Tom Sylvia then made a motion that they defer this until next month and have a discussion about it. Chairman Logue seconded the motion. In answer to a question from Chairman Logue, the Town Solicitor said that it is sufficient to defer for further consideration. The motion was approved unanimously. Chairman Logue asked if it would be proper to ask Mr. Kauffman to work with Town Administrative Official McMullen and come back with a different proposal and was told by the Town Solicitor that this would not be proper. Discussion followed. After some discussion, Mr. McMullen noted that they have focused on the corner of the dwelling but wanted to make sure that the dock is part of the variance request.
Tom Sylvia made a motion to adjourn the meeting. Chairman Logue seconded the motion, and the meeting adjourned at 6:48 p.m.
Respectfully submitted,
Richard J. Logue Chairman Board of Adjustment
Transcribed from Tape: February 16, 2008
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