Complaint Review: New Hanover County NC Zoning - Wilmington North Carolina

New Hanover County residential property owners beware the zoning staff, management, county manager, and county legal staff has decided that parts of the zoning ordinance are ambiguous and may be interpreted in a way that will harm you if your property abuts a business property.

Please read to the end if you may be affected as there will be citations of the solid unambiguous ordinance wording as well as the tortured attempt to interpret plainly written text to allow a business property owner to avoid meeting the clear objective standard. Is this tortured interpretation the result of incompetence, corruption, or a simple error in judgment? Who knows; however the county elected officials, county manager and, according to an email from the Director of the department responsible for zoning, the legal department, all have circled their wagons to protect this indefensible decision.

Ordinance wording is clear and concise:

67B-4: Additional Requirements for Berms and for Yards in which Buffers are Required

2. Combination planted buffer strip with artificial fencing:

a. Artificial fencing shall be between six (6) to ten 10) feet in height,

b. If solid artificial fencing is used, two rows of planted materials shall be provided at a minimum height of three (3) feet at initial planting, and give at least 50% visual opacity of the fence at planting.

c. If permeable artificial fencing is used, two rows of planted materials shall be provided and give approximately 100% visual opacity of the fence within one year of planting.

d. The buffer vegetation shall be located between the fence and the common property line.

As you can see the requirement to plant only two rows of puny shrubs state a fence must be used. The ordinance is quite clear on the location of the fence since the plantings MUST be between the fence and the common property line. No ambiguity in the statement therefore not open to “interpretation”! In the decision you will read it appears that the plantings are actually on our property since that is the only way the current layout meets the ordinance. I do not believe my fence is over 20’ inside of our property line but this is your New Hanover County Zoning enforcement in action.

Maybe they will develop a change to the ordinance item d above to cover their attempt to interpret an objective standard which is not ambiguous to make it ambiguous using this wording:  “The buffer vegetation shall be located within 20’ of the fence”

New Hanover County residential property owners read the following closely. New Hanover County Zoning enforcement has embarked on the very slippery slope of “interpreting” unambiguous objective standards. Based on the interpretation information below ask yourself what will they interpret next, would they decide that the buffer should be less than 20’, or maybe no plantings are required, or as in this case must a homeowner maintain a fence so the business does not have to fulfill their requirements under the ordinance?

So what does the county say about that unambiguous objective standard?

Mr. Barnes,

Thank you for forwarding your recent concerns to us regarding the site. Staff conducted a site visit to the business on June 26, 2013 and spoke to an employee (Mr. Tarter was not present) regarding the concerns. We have had to conclude that the site still remains in compliance due to the following findings:

- As a 6’ fence currently exists, (ordinance does not specify who should have constructed the fence), there are indeed 2 rows of planting. The text of that section further states that the plantings can be 3’ in height at time of planting, which they appear to be:

2. Combination planted buffer strip with artificial fencing:

a. Artificial fencing shall be between six (6) to ten 10) feet in height,

b. If solid artificial fencing is used, two rows of planted materials shall be provided at a minimum height of three (3) feet at initial planting, and give at least 50% visual opacity of the fence at planting.

c. If permeable artificial fencing is used, two rows of planted materials shall be provided and give approximately 100% visual opacity of the fence within one year of planting.

d. The buffer vegetation shall be located between the fence and the common property line.

Mr. Tarter elected to install Leland Cypress plants so they will grow rapidly and with every intention of accommodating the 100% opacity requirement within one year of planting. We simply do not have a way to require fully mature plantings immediately upon installation of the buffer. We cannot make an assumption that the buffer will not achieve this opacity within one year, we have to give the owner the time specified in the ordinance to achieve this.

- Our compliance official has stated that the removal of the large pile of topsoil on the southwestern portion of the site did encroach slightly into the 20’ buffer width, which appears from the photo to have been filled with mulch and is being reserved from any storage or use not permitted within the buffer. There is no ordinance requirement to have a concrete wall, as part of construction of the buffer the owner was required to completely reconstruct this concrete wall in its current place. There is no ordinance violation that the wall does not extend the length of the property.

-

Regarding screening of the storage and loading areas, it is our interpretation, consistent with the information presented on March 11, 2013, that section 67-B(4)(7) is meant more specifically for dumpsters or trash receptacle storage, outside storage for motor vehicles, or for equipment used in excavation, building site preparation, or construction as opposed to a perimeter buffer. This section further states that “screening shall be at least 8 ft in height and may consist of living and nonliving material as specified in this section.” As the business maintains outdoor storage for all the types of mulch and stone, staff interprets that installation of the existing perimeter landscaped buffer will meet this requirement once the new plantings have had time to mature.

We have received the additional complaint from Ms. Wade and are still evaluating that information. Mr. Tarter states that he has information to provide to us that will demonstrate the site met compliance with all regulations at the time of the business being started and that it was established as a business site long ago. We have requested this information to aid in our determination of action regarding Ms. Wade’s complaint.

Finally, please note that this has been an extremely difficult case for our staff who has attempted to handle the issue with the utmost professionalism while trying to balance both your rights and concerns as well as those of the business owner all while trying to enforce the provisions of the Zoning Ordinance. All significant decisions and plans for action have been extensively discussed with representatives from Planning and Inspections, County Legal, and the County Manager’s Office in order to address each parties’ concerns.

Sincerely,

Chris O'Keefe, Director

Planning and Inspections

What you have read so far suggests that the Director of Planning and Inspections has difficulty understanding the ordinance. Ownership of the fencing seems to be a red herring since the placement of the plantings in relationship to the common property line and the fence is the actual issue.

What about the New Hanover County Manager? Well it seems like the best defense, in this case, is to force innocent homeowners into expensive litigation that I suspect New Hanover County will lose costing the taxpayers a fair amount of our tax dollars. The response below reads like an assumption that the cost of litigation will force homeowners to drop the issue and keep the county decision safe.

For those owning residential property abutting business property in New Hanover County, North Carolina...BEWARE YOU MAY BE THE NEXT ONE FACED WITH A BIZARRE INTERPRETATION OF THE ZONING ORDINANCE!

Mr. Barnes:

The county has determined its position. I stand by Mr. O’Keefe’s interpretation, and as such, I might suggest your legal counsel contact the county attorney’s office at 910-798-7153.

Regards,

Chris Coudriet

County Manager

Chris Coudriet | County Manager

County Manager | New Hanover County

230 Government Center Drive, Suite 195

Wilmington, NC 28403

(910) 798-7186 p | (910) 798-7277