Wilmington Board of Adjustment Meeting - January 19, 2023

The Board of Adjustment met on Thursday, January 19, 2023, beginning at 1:01 p.m. and adjourning at approximately 3:52 p.m. The agenda and minutes differ on the venue: the agenda lists City Council Chambers at Skyline Center, while the minutes state City Hall, 102 North 3rd Street, 2nd floor. Members present included Chairman Patrick Moore, Vice-Chairman Mark Saulnier, Jeff Hovis, Jess Johnson, Scott Monroe, and alternates Graham Mitchell and Tyler Newman. All persons testifying were sworn.

Consent Calendar

• The board unanimously approved the November 17, 2022, and December 15, 2022, meeting minutes (5-0).

Public Comments & Testimony

• For 605 Eastwood Road / 3 & 7 Cardinal Drive: Charme McGinn, a representative for GPM Southeast LLC (operator of a nearby Scotchman store), read and submitted a statement written by an absent author; the applicant's attorney cross-examined her about the store's location and whether the neighboring station had applied for a variance.
• For 1900 Wrightsville Green Avenue: neighbors Dalton Lile, Mary Rosandich, and Lynn Gibson opposed the requested setback variance, citing stormwater and flooding, erosion, and concerns about building on a lot that had remained undeveloped. The applicant's attorney rebutted, saying the lot was platted and approved before annexation and that any building would have to comply with flood and building codes.
• No other public speakers testified for or against the remaining items.

Discussion Items

• 4202 Peachtree Avenue (withdrawal): The applicant requested withdrawal after reaching a settlement with the City Attorney's office and agreeing to pay fines. The board unanimously granted withdrawal (5-0).
• 605 Eastwood Road, 3 Cardinal Drive, and 7 Cardinal Drive (RaceTrac variance requests): Staff summarized a proposal to demolish existing buildings, rezone, and build a convenience store and fuel station. The applicant revised the plan to reduce the number of requested variances from the November hearing. Remaining requests were: allow the fuel canopy to be located between the principal use and the right-of-way; allow fuel pumps and canopy forward of the building's front plane; remove five specimen trees (a 27-inch live oak and four longleaf pines, requiring 252 caliper inches of mitigation under the 200% rate); allow a 5-foot reduction in the Eastwood Road buffer from 15 feet to 10 feet; allow a 228-square-foot parking island instead of the required 333 square feet (a 105-square-foot variance); and waive foundation plantings along Eastwood Road. Assistant City Attorney Melissa Huffman noted the city was reviewing whether state law preempts a local code provision limiting variances to dimensional standards. Applicant's attorney Sam Franck presented findings of fact and argued strict compliance would make the project physically impractical, especially because fuel-backward configurations were unsafe on this corner site. Board discussion included concerns that the hardship was self-created by choosing this use and that the applicant had not adequately tried to preserve the specimen trees.
• 1445 Eastwood Road (car wash sign variance): Staff reported the sign was originally placed in the NCDOT right-of-way, then moved to the property but within a 10-foot non-municipal easement. The applicant, Stephen Umstead, requested a variance to allow a freestanding sign 1 foot 10 inches from the front property line, an 8-foot-2-inch variance from the 10-foot minimum. He said 80% of car wash purchases are spontaneous, and the severe slope and roadside vegetation would make a farther sign ineffective. Chairman Moore and Board Member Johnson agreed the slope was a hardship unique to the property.
• 3501 Oleander Drive Unit 1 (HomeSense sign variance): Staff said the Hanover Center multi-tenant building already had more than 200 square feet of signage, so the new tenant was limited to 50 square feet of wall sign under LDC Section 18-389(A)(5)(a). The applicant, David Corbett, requested a 169-square-foot sign, a 119-square-foot variance, arguing it would help customers and emergency services find the store. The board discussed whether a text amendment or sign-code vesting would be a better approach; staff said the city preferred incremental sign-code changes. Board Member Monroe saw no hardship because emergency services could locate the large store.
• 716, 719, 720, 724 S 4th Street & 719 S 3rd Street (Jewel/Mini Pearl extension): Staff presented requests to remove one 36-inch live oak specimen tree at 720 S 4th Street and to increase the maximum UMX building height from 45 feet to 50 feet 8 inches, a 5-foot-8-inch variance. Applicant Mike Beckley said an arborist found the tree's growth had been shaped by Duke Energy trimming, and grade changes plus NCDOT restrictions supported the height variance. Mitigation for the tree would require planting 72 caliper inches of trees. Staff cautioned that the project had not gone through Technical Review Committee site-plan review and that site access could change. The board found the topographical and site conditions supported the variances.
• 108 S 2nd Street (electric power lines variance): Staff requested a continuance; the board continued the matter to February 16, 2023 (5-0).
• 1900 Wrightsville Green Avenue (setback variance): The vacant 3,517-square-foot lot is a legal nonconforming platted lot in Wrightsville Green, annexed after subdivision. Strict R-15 setbacks (20-foot front, 10-foot interior side, 25-foot rear) would severely limit building. Applicant's attorney JC Hearne originally sought zero-lot-line relief, then recommended a modified plan with 10 feet in the front and 5 feet on the rear and sides. Neighbors opposed due to flooding and erosion. The board discussed that the lot was platted and that annexation created the hardship; it approved the modified 10/5/5/5 setbacks.
• 615 N Front Street (CBD mixed-use project): Staff presented a proposed mixed-use development with 195 residential units and just under 20,000 square feet of commercial and amenity space. The site has a 25-foot elevation drop. The applicant sought three variances: 1 foot to allow a 6-foot side street setback on Nutt Street, 3 feet to allow an 8-foot front setback on N. Front Street, and relief from parking location limits prohibiting parking within 20 feet of a right-of-way and within 35 feet of a corner. Applicant representatives Amy Schaefer and Allison Engebretson explained ADA, floodplain, and grade constraints, and said parking would be enclosed and subgrade, not visible from primary streets. Staff concurred that accessibility would take priority. The board approved all three variances.
• 206 Moss Tree Drive (Landfall/Regency Court variance): Staff described a vacant 7,570-square-foot lot in a legacy performance residential subdivision, subject to a 20-foot recorded perimeter buffer and a 25-foot cluster-subdivision buffer standard under current code. The applicant requested a 10-foot rear-yard setback variance and a 15-foot perimeter-buffer variance to allow a home with a 10-foot rear setback. Applicant representative Cindee Wolf said the cul-de-sac location, triangular shape, and utility easements reduced the buildable area, and the land behind is office and institutional, not residential. The board found the request reasonable and noted the buffer encroachment did not affect residential neighbors. If granted, a revised plat would be required to reduce or eliminate the buffer easement.
• 2023 Meeting Calendar: The board unanimously adopted the proposed 2023 meeting calendar (5-0).

Key Outcomes

• Approved unanimously (5-0): Minutes; withdrawal of 4202 Peachtree Avenue; 1445 Eastwood Road sign variance; 716-724 S 4th Street tree and height variances; continuance of 108 S 2nd Street to February 16, 2023; modified 1900 Wrightsville Green Avenue setback variance; 615 N Front Street three variances; 206 Moss Tree Drive variance; and the 2023 meeting calendar.
• Denied: 605 Eastwood Road / 3 & 7 Cardinal Drive variances: accessory fuel canopy motion to approve failed 4-1; fuel pumps forward motion to deny carried 5-0; five specimen-tree removal denied 5-0; Eastwood Road buffer reduction denied 5-0; parking island reduction denied 4-1; and foundation planting waiver denied 3-2. 3501 Oleander Drive sign variance denied 4-1.
• Personnel changes: Board Member Monroe left at 2:30 p.m. and Alternate Mitchell filled his seat; Vice-Chair Saulnier recused from the S 4th Street item and Alternate Newman filled his seat; Board Member Johnson recused from the Wrightsville Green item and Alternate Newman filled his seat. Vice-Chair Saulnier announced that the meeting might be his last on the board.
• The next regular Board of Adjustment evidentiary hearing was scheduled for Thursday, February 16, 2023.