Jeff Repp From: Jeff Repp Sent: Friday March 1,2019 142 PM To: commstewart@ciyofbslorg; Guy Auger ce Cig Caster, Steve Barger; Dana Wit Jane MeMinn; Mcheel senberg (misenberg@fiannet) Subject: Issuance of Zoning Compliance Certificate for 1320 Woodcrest Road ‘Attachments: ‘Atachement #1 af tachment #2 pal Attachment 3p Attachment #4 pdt ‘Commissioners. Per your request have looked into the process that was followed lading up t the iswance of a Zoning Compliance Certificate (occupancy permit forthe above property on January 3, 2019. The results ofthat review areas follows: (On March 22,2018 a zoning permit fora single-family residential structure was issued forthe above property. The applicant was the Brunswick County Habitat for Humanity and after review the application was deemed complete and the zoning permit issued. The issuance date is important since at that time the City was stil utilizing the Unified Development Ordinance (UDO) that was adopted by the City n 2009. As you are aware ths Board of Commissioners adopted a significant revision to that ordinance on June 5, 2018. Since the oning permit was issued prior to June 5, 2018 the approval process for that permit is required isto follow the ordnance in effect at that time ("eld UDO") ‘throughout the process. A summary of the permit process can be found in Attachment i. The significant issue in the approval process that changed between the old and new UDO's forthe fsuance of zoning ‘compliance fs when the “as-built survey" is required tobe performed to show thatthe buildings) constructed meet the Fequired zoning standards. The old UDO required "prior tothe final zoning inspection an as-built survey must be submitted.” (Attachment #2). The new UDO states “an as-built survey shall be submitted tothe UDO Adminstrator by the applicant upon completion ofthe bulding foundation to ensure setbacks and building orientation match the ‘approved site plon.." attachment #3). Based on the 3/22/18 Issuance date the appropriate UDO to use was Attachment #2. Using that standard it was found in application forthe Zoning Compliance Cerificate and the provision ofthe as-built survey the facts found in the ema provided the Board last week (Attachment #4). Clearly, the “new UDO” standard would have caught the infringement upon the sideyard at the foundation phase of construction and corrections could have been made bythe builder at much less expense than it coming up at the end ofthe process a the old UDO call for (ue after the house is already built). In my conversation with the City Attorney below he indicated tat in his real estate experience there Is no ehyme ‘or reason county wide when asbult surveys ae required. Some local governments require them both atthe foundation and at the end, but of course the builders don't ke that causeitincreases the cost of building but it would solve this problem. ‘egal sues. Following our meeting ast week in my office | supplied the above facts othe City Attorney for his opinion as to any legal exposure to the Cty in issuing a Zoning Compliance Certificate knowing thatthe side yard setback had been infringed upon. tt was his statement to me thatthe City had “neerly no legal exposure regarding this isue. The City [MAY have to provide a future seller/ouyer letter advising them that the Cty would not be fling asut to bing the property into compliance if future buyer requtes a survey or reviews the file on this matter. Our conversation Was longer than that but rather than try to summarize it Mr. Isenberg suggested that any commisloner with any questions coule cantact him directly t 910-457-9506 and he would explain his opinion,Itis my hope that this message answers the questions you raised regarding this specifi permit. Ifnot please let me know. JEFFREY E. REPP. CTY MANAGER (CITY OF BOILING SPRING LAKES 9 £. BOILING SPRING ROAD SOUTHPORT, NC 26461 mal: jtepp@cityobsl.org fice: (910) 363-0025 Fax (910) 363-0028anwar tg Sing sks, NC: Pein ase Cette recat: 19-166 ‘seu Permit sued steam 8s NIA ae creme 05/09/2018 corset Bek, Ruth ret vp oe ‘mtn Hcle Morgan Fate aie wei apn: 57NH00203, 2520 Woodarest ta Boling Spring Lakes, NC 28461 Propet type: Resident Zoning: None i Food Zone: None | History Zoning Compliance Corest(@27i5e) 03/03/2019 OB:49 Munger, Nake whew Zoning Permit(a25707) 05/22/2018 17:08 Bek, Ruth vaw Location Vatideted: No 98 (a Vlcate on aoe a Iomatie Ft” Bp umseane Se Fae 41320 Woodcrest Ra 1579H00I03 NO Residents Boling Spring takes, NC 20461 Contacts ‘roperty hile, Hope / Brunswick county 4578 Lang Beach 8, Owner” Habitat for Humanity Soutpore NC 28464 Wistory 1 09:51:51 am Morgen, Nicole Shirley, Hope / Brunswick County Habitat for Humanity Status end Fellow Up co Fao up ot for Aon pele conse ctacnarCsedea sip rswana eg Se ates, NC: Pang Cote Ot Permit Inoved History sey oe erotyen ort 05/22/2016 05-06-31 PA Bek, Ruth Case Status changed to Permit Issued (03/22/2018 05:06:46 PM Bek, Ruth Case Status changed to Approved {05/03/2018 09:51:50 AM Mergan, Nicole Intl Case Status Permit initited General Permit inio egos: RS ropes: Res New Home Construction - Site Bult emt ye Zoning ‘ume te 03/22/2018 woreDesiin: Naw Home Construction once: New Home Construction sae: 1320 Wooderet Rd et a, 1020 we 2 rnavean oun WA Attachments town _ ose beet te ae le Doaument 05/24/2018 166, zoning Permit Appleation 1320_Wooderest.pet Morgan, Nik 33/14/2018 _1520_Wooderest Lot 105_Deed pdt ergo, Nese Document “images marked a Selected are included on View/Print mages page, nthe Fd Report ‘hd in forms. View nt images button has ‘pton fo "inude a checked. History 22/2016 05:06:46 PH Bek, rat AEB 16-168 Zoning Fermi Appleatin_ 1320, Woods pat pss comesicomisarcarebtohpaa019 rg Sng ats, NC: etn ae ete 03/22/2030 05:06:46 PM Bek, Ruth _Aitacment 1320_Wooderest_Lot_105_Deed. pa etd: marked Insc 02/14/2018 04:10:17 PM Morgen, Nicole Case fe tld "1320 Woodcrest Lot 105_Desd pd" ede, corter2018 04:10:18 9 Mogan, Mele C8 Wd 18-6E~2aing Perm Apleton_129 Wecdces pa Fe fama forme geet fen ome Ns | age ee eee ee $0.00 cole 03/09/2018. Baling in 03/09/2018 $0.00 081 (053) Fu La nee ‘creck $50.00 1354 yao Hesle Noe o2yna/2018 Pay erwan Morgen ‘curren Bance: $0.00, L aspections its ey oman te Seid sour toe sunroom xyanraoie 03/22/2018 0372/2058 71 pare zoning New Home” Bek, Bok, sve me iz00AM 12:00am «71 Passed Zoning Constnicion Ruth Ruth permit History es one EE 03/22/2018 05:06:30 PM Bek, Ruth Change Z-1Inspecion Checlt status rom: NYA to Paed (03/22/2018 01:0408 PH Morgan, Nicole Added 2-1 Inspection Checklist ‘03/09/2038 Morgen, 03/09/2018 Emailed nk to pay 10:32:30.8 "Mole History ye Empvee earn Time Tracking Tomi ___—0.00 | peters cometacamiaharcaneDetgte oCity of Boiling Spring Lakes 9 East Baling Spring Read Bailing pring Lakes; NC 28461 The Special Events Committee has cancelled their December 11, 2019 meeting. The next meeting will be held January 8, 2020ARTICLE 12. DEVELOPMENT REVIEW PROCESS 12.5.2 Application for Review ‘plan ofthe propases development shall be subitted and shall be accompanied by a completed application and payment of a fee as adopted by the Board of Commissioner, in accordance with Section 2.14, 1253 Planning Staff and TRC Review ‘The UDO Administrator or his designe wil present the plan to the Technical Review Commitee The plan vil be reviewed for compliance with his Ordnance and al elated plans and polices. The [UDO Aminstrator may aso circulate the plan to the relevant governmental agencies and afl. 12.5.4 Permit Issued or Final Plat Approved Ifthe plan, engineering drawings, or final plat found to meet al ofthe aplcable regulations of this Ordinance, then the UDO Administrator shall sue a zoning permit fr ste plans. 125.5 Zoning Inspections and Certificates of Occupancy Prior tothe isuance ofa Certificate of Occupancy by Boling Spring Lakes Bulding Inspection, the [ubO Administrator or nis designee shall conduct @ nal zoning inspection to ensure that the ‘approved plen has been foloned and all required improvements have been Installed to City Standards. Prior to the final zoning inspection, an as-ulk survey must be submitted to the UDO ‘Administrator. The as-bult survey shall be drafted and scaled by a surveyor registered inthe State OF North Caralina and shoul show the location of al ste improvernens. ‘Secrton 12.6 Puaraaic Boao Review ano BoaRo oF CoMtsstONeRs APPROVAL Planning Board review and Board of Commissioners approval apples t the Following + Major Ste Plans Page 12-10ARTICLE 9. DEVELOPMENT REVIEW PROCESS ‘Section 9.1 Purpose and Applicability (A) The purpose of his Ate sto establish an ordery process to develop land within the {ty of Bolling Spring Lakes. Tes aso the intent ofthis Ate to provide a clear and ‘comprehensible development process that i fai and equftabl to all interests including the peitoners, affected neighbors, City staff, elated agencies, the Planning Board, ‘Board of Adjustment, and the Board of Commissioners. Approved plans shal be the ‘guiding documents for fnal approval and permitting. (©) Ian application fora minor site plan, major ste plan, or conditional use permits Subject: RE: 1520 Weoderest Approved, ‘From: Nicole Morgan Sent: Friday, December 21,2018 11: To: Jeff Repp Subject: 1320 Wooderest Habitat for Humanity submitted thelr as-bull survey for 1320 Woodcrest. They have encroached into the sie setback bby8.6 inches. Not much we can do about it now, since the houses done "have discussed with Ruth nthe past, thatthe UDO requires as-built surveys be submited upon completion of the bulding foundation. Ruth has been requesting them after al construction completed, immediately prior othe Issuance ofthe Certificate of Occupancy. thnk is important that we require them atthe foundation order to avoid suatlons such as this one | do think that, based upon the fac that we dd ot require the as bult at the foundation, a stated in our UDO, we can {0 ahead and sgn off on the Zoning Compliance (ll other requirements are met, but need your spproval. ‘Thanks.Nicole Morgan laonng 8 Zoning Cy of Boing Spring Lakes Boing Springs fa Southport Ne 28461Jeff Repp From: Jeff Repp Sent: Friday, March 15, 2019 1209 PM To: Mark Stewart, ce Nicole Morgan: Ruth Be; Craig Caster; Dana Wit Guy Auger Steve Barger Subject: RE: Responses to Questions ‘Attachments: 140c04531320190315113743 pct ‘commissioner, Prior to June 5, 2018 the attached section ofthe old UDO (12.5.5) was the governing statute regarding the issuance of {inal zoning certificates and occupancy permits. did not provide any guidance as to what todo fat the end ofthe process (house Is built) ithe as-built survey (which the city then required atthe end ofthe process) showed an ‘encroachment ona setback requirement. At that ime the decision forthe UDO Administrator was to (1) ssue the permit for occupancy based on the encroachment or (2} deny the permit based on same. Adenial ofthe permit, then ‘and now, provides the applicant (HFH) the right to appeal the UDO Administrator's decision to the Board of Zoning ‘Appeals (per Article 4 ofthe UDO which in both the old and new UDO i estentally unchanged) challenging the decision made by the UDO Adminstrator. \With the adoption of the new UDO on June 5, 2018 and the subsequent amendment that you proffered and was adopted by Board atthe lst board meeting the discretion of the UDO Administrator to issue a permit ifan encroachment i found in the as-bult survey has been removed and the permit wil now be denied by the UDO ‘Administrator and the applicant will be required to appeal tothe Board of Adjustment to have them ether affirm or deny the decsion ofthe UDO Administrator in denying the permit Life before uDO's ‘uring my tenure t have had to issue at least one letter when it was found thats house was constructed (prio to 2008) with a building permit issued by the City but the house was found during a survey required fr refinancing ofthe property or sale ofthe property (can’t remember) thatthe house was built int city setbacks. Property next to Mary Stitwels house comes to ming. The reason for that was prior to October 2009 when the old UDO became effective the below section ofthe Code of Ordinances was the governing statute: Sec. 4.59 - Limitations on issuance. {) No building permit shall be issued for any building or structure the estimated total cost of whichis ‘more than thirty thousand dels ($30,000.00), unless the work sto be performed bya licensed general {b} No building permit shall be issued fr any bulding o structure, other than a one- of two-family éweling the estimated total cost of which is more than ninety thousand dollars ($80,000.00), unless the plans bear the state seal of areglstered architect ora registered engineer. {@] Where any provisions ofthe General Statutes o of any ordinance require that work be done bya licensed specialty contractor of any kind, no permit forthe work shall be Issued unless itis to be performed by the licensed specialty contractor. {4} Where detale plans and specifications are required by this chapter no building permit shall be 'ssued unles the plans and specifiations have been provided. than one (1) year od) required plus & 2 thatthe bulldina Is properly located onthe lot with respect to set back requirements, In Mary's neighbors case no surveyor or verification were inthe file. The letter! provided simply stated tothe bank that ‘the City was would not be taking any legal action to require the setback encroachment to be complied withJusta FY Let me know ifyou have any ational questions soft From: Mark Stewart Sent: Monday, March 11,2019 11:15 AM To: Jeff Rep Ce: Nicole Morgan ; Ruth Bek Craig Caster ; Dana Witt ; Guy Auger Subject: Re: Responses to Questions Jef, “Thanks forthe response. | agree that a foundation survey was not required for this house. We have since closed that logp hole as of June 5, 2078 and there is no excuse for not requiring one for any permit iseued after that date. 111 understand you correctiy if any final as built survey submitted prior to March 6, 2019 that showed a house within the set backs, there was nothing in the DUO that allowed the city to deny a Zoning Compliance Cerificate or a Cerificate of Occupancy Cerificate. Because as you stated, prior to March 6, 2019 the DUO id not provide directions to take to correct the issue. Is that a correct statement? (Get Outlook for Android Sent: Monday, March 11, 2019 9:38:57 AM “Tor Mark Stewart Ce: Nicole Morgan; Ruth Bek; Craig Caster; Dana Witt; Guy Auger; Mark Stewart; Steve Barger ‘Subject: Responses to Questions Commissioner, Please find below responses to your 3/4/19 email. | asked Nicole to provide responses to the fst several. (On or about December 19, 2018 the building inspections department received an as - built survey ofthe Habitat for Humanity house built on 1320 Wooderest Rd. The survey clearly shows the house was bull inside the required serbacks. ‘Answer: There is no argument that the December 19, 2018 as-built survey provided by Habitat {for Humanity shows encroachment into the side yard setback. Nicole provided the following ‘summary of dates: On March 22, 2018 a zoning permit for new construction at 1320 Woodcrest ‘was approved, and issued (permit #18-166). On March 28, 2018 a building permit was issued {(pormit #18-169). On or about December 19, 2048, Habitat for Humanity submitted a final as-built "survey for tle project, incleating the structure didnot meet the minimum required ede setback 10: (On December 21, 2018, Nichole sent you an email informing you that the violation existed. Question i, why ‘was she not instructed fo proceed with following the procedures as outlined in Article 4 ofthe UDO?‘Answer: To the best of my memory at that time there was no discussion of denying the permit to Habitat for Humanity which would have then led to looking at Article 4. The old UDO does not provide language as you recently have added to the new UDO making ita requirement that an applicant must now seek relief from Article 4. The process of applying for a variance ‘would not have been available to HFH since one of the six conditions to have been met for a variance is the problem is not a result of a “financial hardship” upon the applicant. if the UDO ‘AdministratoriCity had denied the issuance of a occupancy permit due to the sideyard violataion HFH could have appealed that decision per Section 4.6.1(a) of the UDO which states: (a) An appeal from any final order or decision of the UDO Administrator may be taken to the Board of Adjustment by the City or by any person who has standing under NCGS ‘160A-399(d), An appeal is taken by fling with the City Clerk a written notice of appeal ‘specifying the grounds therefor. A notice of appeal shall be considered filed with th Board of Adjustment when delivered to the City Clerk, who shall enter on it the date and time of filing. Which then leads to: (6) The Board of Adjustment may reverse or affirm, wholly or partly, or may modify the ‘order, requirement, decision, or determination appealed from and shall make any order, requirement, decision, or determination that in its opinion ought to be made in the case before it. To this end, the Board shall have all the powers ofthe officer from whom the appeal is taken. Nicole also provided these comments: On December 24, 2018, Nicole Morgan sent an ‘email indicating the side setback had not been met. Her email indicated that a foundation ‘survey was not submitted, as required by the UDO. This statement made by Nicole was. incorrect. At the time of her email, Nicole was not aware that this project began prior to the adoption of the new UDO. Section 9.1 ofthe UDO that was adopted on June §, 2018 states an as-built survey shall be submitted upon completion of the bullding foundation to ensure setbacks match the approved site plan; however, the old UDO did not require as-built surveys at the foundation. On January 3, 2018 a Zoning Compliance Certificate was issued stating, “This certifies thatthe use andlor work authorized under Permit # 18-166 is in compliance with zoning requirements as ofthe issuance date, for the folowing: New Home Construction". Yet in the notes section of the certificate has 9.26. Side Setback ‘Approved. Answer: This appears to be a case of standard verbiage being in the permit with Nicole making note in the “notes section” that in fact a side yard setback issue oxiets but had been approved by the UDO Administrator. Then on January 8, 2019 a Certfcate of Occupancy was issued for Permit # 18-169 for 1320 Wooderest Rl ‘The permit number is diferent than the one on the Zoning Compliance Certificate and the issue date Iisted is January 8, 2019 ~ Corrected ‘Answer: These are Nicole’s comments: After receiving Nicole's email, Zoning Compliance was authorized, signed and issued on January 3, 2019, After issuing Zoning ‘Compliance, the building inspections department issued a Certificate of Occupancy under permit #18-169. The Certificate of Occupancy and the Zoning Compliance Certificate have different permit numbers, since one is issued under the zoning permit, and the other is issued under the building permit. The date on the Certificate of Occupancy states “corrected,” as Maggie DellaBadia dated the inital Certificate of Occupancy as January 3, 2018, therefore had to correct the date to reflect 2019.But more importantly, what process was used to resolve the violation forthe house bull on 1320 Woodcrest Ra. thats within the setbacks as indicated by the as - bul signed 19 December 2018? Article 4, ‘Administrative Review Process of the Cty of Boling Spring Lakes UDO clearly states the procedure(s) to resolve any issues. What actions were used to resolve this ? ‘Answer: As I mentioned above at the time there was no discussion that | am aware of that involved referring this to the Board of Adjustment. In my mind any appeal to the BOA usually Involves a request for a variance which | know could not be iseued in this case by the BOA due to the financial hardship issue, It never occurred to me that the “appeal to any decision” would be available to them ifthe permit were to be denied. With your recent amendment to the UDO at the last meeting that matter is now clear to staff. The UDO Administrator wll now deny any permit that involves an encroachment into the setbacks and the applicant can appeal that decision per Section 4.41(a) to the Board of ‘Adjustment. Hopefully, with the 2s-bullt survey being required at the time of the foundation inspection that is now called for in the UDO this situation should not present itself. Butif it does the remedy Is clearly spelled out. JEFFREY E. REPP. ‘CTY MANAGER (CITY OF BOILING SPRING LAKES 9 E. BOILING SPRING ROAD SOUTHPORT, NC 26461 Emal:fecon@cityotbs|org Office: (910) 363-0025 Fax: (910) 363-0029ARTICLE 12. DEVELOPMENT REVIEW PR¢ 4125.2 Application for Review {plan ofthe proposed development shall be submitted and shal be accompanied by @ completed application and payment of a fee as adopted by the Board of Commissioners, in accordance with Section 2.14. 4125.3 Planning Staff and TRC Review ‘The UDO Aiministrator or his designee wil present the pian to the Technical Review Committe. ‘The plan wil be reviewed for compliance with this Orcinance and all related plans a poles. The {UDO Adminstrator may aso crculate the plan tothe relevant governmental agencies an oficial. 41254 Permit Issued or Final Plat Approved Ifthe plan, engineering drawings, or final plat is found to meet al ofthe applcable regulations of this Ordinance, then the UDO Administrator shall issue a zoning permit for site plans. 42.5.5 Zoning Inspections and Certificates of Occupancy Prior to the issuance ofa Cartcate of Occupancy by Boling Spring Lakes Bling Inspections the [UbO Aaministetor or his designee shall conduct a final zoning inspection to ensure that the ‘approved plan has been foloned and all required Improvements have been installed to Clty ‘Standards. Prior to the final zoning inspection, an as-built survey must be submitted to the UDO Administrator. The as-built survey shal be drafted and scaled by 2 surveyor registered nthe State ‘f North Carolina and should show the location of al ke Improvements, ‘SecrION 12.6 PLamtane Boaao Review avo BoARo OF COMMISSIONERS APPROVAL Planning Board review and Board of Commissioners approval applies tothe fllowing: + Major Ste Plans age 32-10,