Chairman Craddock performed the oath of witnesses for: Emily Crodick, William James Crodick, Jr., Edward (Eddie) T. Hyman, Jr., Kevin Kemp, and John Raymond.
The Board of Adjustment Attorney, Ms. Womble, identified the parties present at the hearing: Ms. Morgan, Currituck County's Attorney; Mr. Brumsey, Applicant's Attorney; Mr. Gallop representing Neighbors (known as Emily Crodick, William Crodick, Jr, and Martin Farms & Winery, Inc.
Mr. Gallop said he filed a Motion to Intervene on behalf of the Neighbor (parties listed above) and Ms. Morgan and Mr. Brumsey have agreed not to object for standing. Mr. Gallop handed out Neighbor Exhibit 1 - Affidavit of Emily Elders Crodick dated December 7, 2022. The board motioned to accept this document for standing and the motion to intervene was granted without objection.
Megan Morgan, County Attorney, handed out the following County Exhibits A-F:
- County Exhibit A - Determination of Buildability for 185 Bay Orchard Lane dated June 3, 2022
- County Exhibit B - Unified Development Ordinance, Chapter 10, Section 10.5
- County Exhibit C - Record of Deeds 98
- County Exhibit D - Survey of Property
- County Exhibit E - Recombination Survey
- County Exhibit F - 1992 Unified Development Ordinance, Article 1, 2, and 9
Witness for the County
The County called their first witness, Kevin Kemp. Mr. Kemp gave his educational background, prior employment with duties, and stated his current employment with Currituck County as the Development Services Director with his current duties. Mr. Kemp said he first became involved with the current application through a CAMA Minor Permit received by staff. Mr. Kemp said he was tasked with determining if the parcel was a lot of record and found that it did not meet the requirements. He came to this conclusion by using County Exhibits A-F.
Ms. Morgan submitted into evidence County Exhibits A-F and County Exhibit G - Staff Report dated January 12, 2023 (pages 5-10).
Questions for Mr. Kemp - Mr. Brumsey asked what the date of the application for the CAMA Minor Permit was which brought about the Variance Request. Mr. Kemp was not able to give the date from memory. Mr. Gallop asked questions concerning the recombination of parcel A and Parcel B for the original acreage and the resulting acreage.
Board Questions for Mr. Kemp
Board members asked questions concerning the conformity of lots, required sizes for conforming lots, etc. and legal lots of record. Mr. Kemp said the size required for lots created before 2013 is 40,000 square feet according to the current UDO. Mr. Miller said pulling a permit makes it a legal lot and Mr. Kemp said yes, if the permit is issued by the County. Mr. Craddock asked if they were correct in assuming there was a building permit issued and a Certificate of Occupancy for the house on lot A since it is occupied. Mr. Kemp said the house was built in 1958 before the adoption of any zoning regulations for the County.
Mr. Brumsey asked if there were any building permits requested by Parcel A on Exhibit E. Mr. Kemp said yes, the permits were for a generator, a bulkhead, and a septic repair.
Ms. Morgan had no further witnesses for the County.
Witness for the Applicant
Mr. Brumsey called his first witness, Vicki Ansell. Ms. Ansell said she currently lives at 649 Knotts Island Road, she is 71 years old and has lived in Currituck County her entire life. Ms. Ansell said they had purchased the subject property in June of 2020 for $160,000 from Lynda Behnke with the intention of building a single-family residence. Ms. Ansell said they started the permit process in April 2022 and shortly thereafter received a call from the County stating there was a problem. Ms. Ansell said she did not have any knowledge of any problems with the property before she purchased it. Ms. Ansell said they are willing to help pay for the access road, but there are a total of seven properties using Bay Orchard Lane.
Mr. Gallop asked Mr. Ansell questions concerning the easement used to get to their property and Ms. Ansell said she is aware the property that the easement is located on is owned by the Crodick family but there is an issue with the true location of the easement since the road has been moved. She said they are willing to pay for the maintenance for the 20 ft easement used to access their property.
Board Questions for Ms. Ansell
Mr. Breathwaite said Ms. Ansell had already answered his question since she is willing to contribute to the maintenance of the road.
Mr. Miller asked for the total length of the road and Mr. Brumsey said about a 1/2 mile.
Ms. Bontemps asked Ms. Ansell when the easement was created, was there a road maintenance agreement recorded and Ms. Ansell said there is no maintenance agreement she is aware of.
Chairman Craddock asked Ms. Ansell if she knew of any maintenance agreement for the other six property owners on Bay Orchard Lane. Ms. Ansell said, no, she does not know of any road maintenance agreements with the other property owners.
Second Witness for Applicant
Mr. Brumsey handed out Applicant Exhibits 1-12 and called Eddie Hyman as his second witness. Mr. Brumsey said he will go through the exhibits as Mr. Hyman testifies. Mr. Hyman gave his education background and said he received his professional surveying license in 1980 but had been surveying since 1973. Mr. Hyman said he has worked in northeast North Carolina, with the main counties of Chowan, Perquimans, Pasquotank, Camden, Currituck, Dare, and Hyde. Mr. Hyman also said he had also been on court surveys as far as the center part of the state. Mr. Brumsey asked Mr. Hyman if he had reviewed all of the information concerning the variance request and if he would be able to assist the Board of Adjustment to better understand the information for this case. Mr. Hyman said he had reviewed all the documents and he does believe he would be of assistance since he was there at the time it was taking place.
Mr. Brumsey tendered Eddie Hyman as an expert in the field of surveying work with no objections heard.
Mr. Brumsey referenced Applicant Exhibit 2 - Recombination Survey (Behnke Plat- Plat Cabinet C2-Slide 347) and asked Mr. Hyman to give the background on this survey. Mr. Hyman said he met with the County to get a recombination. Cheryl Egger, Planner and the Plan Reviewer with the County, signed the plat. Mr. Hyman said the Planning staff was always good to work with to help rectify nonconforming situations. Mr. Hyman said he was also familiar with other plats that were recombined to meet requirements, such as Applicant Exhibit 6 - Nancy Ferebee and Catherine Worthing Recombination Plat dated April 30, 2002 (Plat Cabinet C2-338). Mr. Hyman said the Behnke Recombination and the Nancy Ferebee/Catherine Worthing Recombination were completed within 30 days of each other and both of the recombination plats were done to decrease the nonconformity, although they did not meet all the requirements, they met the intent. Mr. Hyman said a house was allowed to be built on the Nancy Ferebee/Catherine Worthing Recombination in 2003.
Mr. Brumsey asked Mr. Hyman how many other parcels were using the easement for Bay Orchard Lane and Mr. Hyman said a total of seven properties. Mr. Brumsey asked if there were other building permits issued for Parcel A on the Behnke Recombination. Mr. Hyman said yes and referenced the Exhibits 10-12 showing three permits issued which were issued after the recombination plat in 2002. Mr. Brumsey asked Mr. Hyman if these permits mean 181 Orchard Lane has been recognized as a lot of record and Mr. Hyman said yes.
Mr. Gallop objected to Mr. Hyman saying 181 Orchard Lane was recognized as a lot of record. Chairman Craddock asked for the basis of his objection. Mr. Gallop said Mr. Brumsey is asking for a legal conclusion rather than a surveying conclusion. Chairman Craddock abstained the objection.
Mr. Brumsey asked Mr. Hyman, in his opinion, was Parcel B on the Behnke Recombination a legal lot of record after Cheryl Eggar signed the plat. Mr. Gallop objected. Mr. Brumsey said Mr. Hyman has been tendered as an expert witness. Mr. Gallop said he disagrees that her signature makes it a legal lot of record. Discussion was held between all representing attorneys on whether on an expert in surveying can render an opinion on his conclusion that the signature of Cheryl Eggar made the parcel a legal lot of record.
Ms. Womble said this is Mr. Hyman's legal conclusion in his opinion and the board is aware this is not a binding conclusion.
Mr. Hyman said in 1998 the Gate Keeper was put in place for five categories of surveys. to meet statutory requirements and Cheryl Eggar's signature meant it met those requirements.
Mr. Brumsey asked Mr. Hyman if he was aware of building permits for Parcel A which are Applicant Exhibit 10 (2021), Applicant Exhibit 11 (2006) and Applicant Exhibit (2006). Mr. Hyman said yes.
County Questions for Mr. Hyman
Ms. Morgan asked Mr. Hyman if Applicant Exhibit 6 meets statutory requirements for recording or the requirements of the UDO. Mr. Hyman it says it meets the statutory requirements for recording.
Mr. Brumsey explained his exhibits and moved to admit Applicant Exhibits 1-12.
Board Questions for Mr. Hyman
None
Neighbor First Witness
Mr. Gallop called Emily Elders Crodick as a witness. Ms. Crodick said she lives at 213 Martin Farm Lane, Knotts Island, and they had purchased the property in April 2017 which is used as a peach orchard and winery.
Mr. Gallop refers to Neighbor Exhibit 2 - William P Martin and Mary Louise Martin Plat and asked Ms. Crodick to describe the easement location on the plat, describe the properties' locations on the plat.
Mr. Gallop refers to Neighbor Exhibit 1 - Affidavit of Emily Elders Crodick and asked Ms. Crodick to confirm she has knowledge of this document and that she prepared this document; Ms. Crodick said yes.
Mr. Gallop asked for the Affidavit of Emily Elders Crodick which was brought in for standing to be admitted for the main hearing on the merits.
Mr. Brumsey objected to the admission and said he would like to cross-examine based on her testimony as to what is in the affidavit. Mr. Brumsey said the affidavit was for standing only and not for the substance.
Mr. Gallop asked Ms. Crodick if she has issues with the proposed variance to build a house at 185 Bay Orchard Lane. Ms Crodick said yes, she has problems with the egress and maintenance. Ms. Crodick said her husband would maintain the road, but he is no longer here to do that. Ms. Crodick said her husband maintained the road with a Bobcat, shovels, and help from their two boys. Ms. Crodick said the road is already difficult to maintain and it will be worse with heavy trucks coming in when building a house.
Mr. Gallop asked Ms. Crodick questions concerning her understanding of problems with Parcel A and Parcel B. Mr. Brumsey objected to this line of questioning since Ms. Crodick is not an expert witness to talk about legal issues with the property. Chairman Craddock overruled the objection saying Ms. Crodick can give her opinion as she understands it. Mr. Gallop asked Ms. Crodick what her understanding of how the property could be developed. Ms. Crodick said she thought it could not be developed since it was not three acres of land, and that the road is not big enough for firetrucks.
Mr. Gallop asked Ms. Crodick if there would be any other effects to her from the building. Ms. Crodick said just the maintenance of the road.
Applicant Questions for Ms. Crodick
Mr. Brumsey asked Ms. Crodick how they accessed their working farm. Ms. Crodick said they use the road that goes through the middle of their property.
County Questions for Ms. Crodick
Ms. Morgan asked Ms. Crodick where she received the information about the road not being big enough for firetrucks and that houses could not be built due to this. Ms. Crodick said she did not know.
Board Questions for Ms. Crodick
Mr. Breathwaite asked Ms. Crodick about the other property owners that live on the road.
Ms. Bontemps asked Ms. Crodick if they had approached the other owners to ask for help maintaining the road and Ms. Crodick said no.
There were no further questions.
Mr. Gallop asked for Neighbor Exhibit 1 to be admitted as evidence. The Applicant and the County both objected. Ms. Womble also disagreed with the Neighbor Exhibit 1 -Affidavit of Emily Elders Crodick being accepted as evidence since Ms. Crodick did not state most of its contents in her actual testimony. Neighbor Exhibit 1 was accepted as Standing Only.
Neighbor Second Witness
Mr. Gallop called his second witness, William James Crodick, Jr. Mr. Crodick said he is the grandfather to Emily Crodick's children and the father of Will Crodick. Mr. Crodick said he currently resides at 6568 Pohite Drive, Mechanicsville, Va. Mr. Crodick said the fire safety concerns came from my conversations with Will, Emily's husband. Mr. Crodick gave opinions on the Currituck County Unified Development Ordinance (UDO). Mr. Brumsey objected to Mr. Crodick's opinions on the UDO stating he is not qualified in this matter.
Mr. Gallop asked Mr. Crodick length of the road and Mr. Crodick said 1/2 mile.
Mr. Gallop tendered Mr. Crodick as a property expert. Mr. Brumsey objected, and Chairman Craddock sustained the objection.
Mr. Gallop asked Mr. Crodick what his objections were to the development. Mr. Crodick said his primary concern is maintenance of the road since the total length of the easement is one mile.
Mr. Crodick gave opinions on the UDO and Mr. Brumsey objected. Chairman Craddock sustained the objection.
Mr. Crodick said there is no maintenance agreement. Mr. Crodick began giving opinions on the UDO. Mr. Brumsey objected, and the objection was sustained.
County Questions for Mr. Crodick
Ms. Morgan asked Mr. Crodick if he was present when Ms. Ansell had testified she helped with the road maintenance and Mr. Crodick said yes.
Board Questions for Mr. Crodick
Mr. Breathwaite asked Mr. Crodick to explain why he used the term "responsible" for road maintenance. Mr. Crodick said his son accepted responsibility because no one else would do it and the responsibility always seems to fall on the majority property owner.
Mr. Miller asked Mr. Crodick why he felt he had that responsibility and continue to maintain that road when you have a private road to access your own property. Mr. Crodick said they felt it was the right thing to do.
Chairman Craddock opened the public comment period.
Public Comment
John Raymond of 181 Bay Orchard Lane came before the board and said he was directly north of the subject parcel. Board members determined this is Parcel A in relation to the plats. Mr. Raymond asked if this hearing was approving building plans. Ms. Womble said no, and explained this hearing was only for a variance.
Chairman Craddock closed the public comment period.
County Closing
Ms. Morgan said it is not the County's job to sway you, but only to present the staff report with each of the variance review standards which have been met.
Applicant Closing
Mr. Brumsey agreed with the staff report, and we know that Ms. Croddick needs help with the maintenance of the road, but they also testified they use the road for the farm with the use of heavy equipment. Mr. Brumsey said this plat has been in place since 2002 and we are requesting you follow the staff report and find that the Applicants have met the variance review standards.
Neighbor Closing
Mr. Gallop referenced a David Owens book read a portion of the book concerning variances. Mr. Gallop read the variance review standards on page 8 of agenda packet. Mr. Gallop said the variance should not be given since it creates a hardship on others and that the requested size of the variance is too large. Mr. Gallop handed out UDO Section 6.2 and 6.2.1 and spoke of the road requirements in this section for subdivisions. Mr. Brumsey asked the board to add the condition of paving the road or at the minimum a maintenance agreement if the variance is granted.
Ms. Womble asked Mr. Gallop why he left out section 6.1.1 which describes the purpose and intent of the chapter and said the chapter 6 pertains to subdivisions and not all development. Ms. Womble said it is misleading to leave a section out to try and change the meaning.
Mr. Breathwaite said we are not here to talk about development, but to give a variance.
Ms. Womble said Mr. Gallop is arguing that the board does have discretion to add conditions to a variance.
Mr. Gallop said he is asking for the board to deny the variance or approve and place conditions to share in the maintenance cost.
Ms. Morgan said the County does agree the board can place conditions, but the County does not agree that 6.1.2 applies.
Mr. Brumsey said Chapter 6 which Mr. Gallop referred to applies to subdivisions in the County but does not apply to every dirt road in the County. Mr. Brumsey read 6.1.2 Applicability which states the standards in this section are the minimum standards applied to all subdivisions.
Chairman Craddock closed the public hearing and recessed at 9:42 PM.
Chairman Craddock called the meeting back to order at 9:48 PM.
Board Discussion
Mr. Breathwaite said he actually has the David Owens book referenced by Mr. Gallop and this board has the authority to grant a variance. Mr. Breathwaite said, as for the additional conditions, it should not fall only on the new resident and not on all the other residents, but we do not the authority to place conditions on the other residents.
Ms. Bontemps agreed with Mr. Breathwaite saying she lives on a private road and has to maintain that road twice per year; we should not get involved in the road issue.
Mr. Kane said he believes Vicki Ansell and David Barham are the ones being burdened with hardship more that the Crodick family.
Chairman Craddock said the maintenance should be equally shared between all property owners and should not be the responsibility of just the Crodick or the Ansell families.
Mr. Breathwaite said, based on the testimony of the Crodick family, I feel for them, but the burden was already there long before the Ansell's bought the property.
Mr. Craddock said whether egress or ingress, you own rights to the easement, and they have the right to use it.
Ms. Womble gave instructions to the board that they are not ruling on whether the applicant will be able to build, they are only considering if the property is a lot of record. Ms. Womble also instructed the board to vote on each of the six variance review standards separately.
Variance Review Standards
1. The alleged hardship is suffered by the applicant as a result of the application of this ordinance.
Mr. Miller motioned to affirm.
Mr. Kane seconded the motion.
Discussion: The applicants did not do anything to cause this hardship. They purchased the property in good faith for $160,000 to build a home on. They made no choice in this other than they bought the property and then had a problem which is a result of the ordinance.
Vote: Motion passed unanimously 5-0.
2. The hardship relates to the applicant's land, such as location, size, or topography rather than personal circumstances.
Mr. Miller motioned to affirm.
Mr. Kane seconded the motion.
Discussion: The hardship purely relates to size. The lot was previously 5,500 sq ft and the change in size was a 77% improvement in reduction of nonconformity. It makes things better and Mr. Hyman testified to that as well. The intent of this was to make it better.
Vote: Motion passed unanimously 5-0.
3. The hardship is unique, or nearly so, rather than one shared by many surrounding properties.
Mr. Miller motioned to affirm.
Mr. Breathwaite seconded the motion.
Discussion: The hardship is unique since it is the only non-conforming lot that has this issue. The other non-conforming parcel discussed doesn't apply because they had a building permit at that point. Once a building permit is issued it is a legal lot of record.
Vote: Motion passed unanimously 5-0.
4. The hardship is not the result of the applicant's own actions.
Mr. Miller motioned to affirm.
Mr. Kane seconded the motion.
Discussion: This ties in with and is really the same as the first two. The hardship is not a result of the applicant's own actions.
Vote: Motion passed unanimously 5-0.
5. The variance will not authorize the initiation of a nonconforming use of land.
Mr. Miller motioned to affirm.
Mr. Kane seconded the motion.
Discussion: It's located in the right zoning of Single Family-Mainland for their intent to build a house and it is fitting and harmonious with the surrounding lands.
Vote: Motion passed unanimously 5-0.
6. The requested variance is consistent with the spirt, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.
Mr. Miller motioned to affirm.
Mr. Kane seconded the motion.
Discussion: Mr. Breathwaite read an insert from Quasi-Judicial Handbook: A Guide for Boards Making Development Regulation Decisions written by Adam Lovelady and David W. Owens, "The purpose of a variance is to allow certain deviations from the dimensional standards of the Unified Development Ordinance such as height, yard setback, lot coverage, or similar numerical standards when the land owner demonstrates that owing to special circumstances or conditions beyond the land owners control such as topographical conditions, narrowness, shallowness, or shape of a specific parcel of land, a literal application of the standards would result in undue and unique hardship to the landowner, and the deviation would not be contrary to the public interest." This gives the spirit, purpose, and intent. The request meets this.
Vote: Motion passed unanimously 5-0.
Discussion Concerning Conditions: Board discussion was held on the conditions requested by the Crodick family. The board decided against adding any conditions.
Board of Adjustment Decision
Mr. Miller motioned to approve BOA 22-05 Vicki Ansell and David Barham Variance since all six variance review standards have been affirmed as written for the applicant, with no conditions, as recommended by staff.
Ms. Bontemps seconded the motion and the motion carried unanimously 5-0 to approve the variance.
Complete Listing of Exhibits - Accepted
- County Exhibit A - Determination of Buildability for 185 Bay Orchard Lane dated June 3, 2022
- County Exhibit B - Unified Development Ordinance, Chapter 10, Section 10.5
- County Exhibit C - Record of Deeds 98
- County Exhibit D - Survey of Property
- County Exhibit E - Recombination Survey
- County Exhibit F - 1992 Unified Development Ordinance, Article 1, 2, and 9
- County Exhibit G - Staff Report (pages 5-10 of the agenda packet)
- Applicant Exhibit 1 - Deed into the Applicants (Deed Book 1546, Page 818)
- Applicant Exhibit 2 - Recombination Survey (Behnke Plat - Plat Cabinet C2-Slide 347)
- Applicant Exhibit 3 - Deed 98, Page 161 (1962 Plat)
- Applicant Exhibit 4 - Currituck County Tax Profile
- Applicant Exhibit 5 - Aerial of the Lot
- Applicant Exhibit 6 - Nancy Ferebee Recombination Plat dated April 30, 2002 (Plat Cabinet C2-338)
- Applicant Exhibit 7 - NCGS 1-51: Statute of limitations for government action on violation of land use statute when local government knows of violation.
- Applicant Exhibit 8 - NCGS 1-49: Statute of limitations for government action on violation of land use statute when visible from public.
- Applicant Exhibit 9 - Statute of limitations for Misdemeanors (NCGS 15-1)
- Applicant Exhibit 10 - Building Permit 202101254 for 181 Bay Orchard Lane (Parcel A on Behnke plat)
- Applicant Exhibit 11 - Building Permit 200601979 for 181 Bay Orchard Lane (Parcel A on Behnke plat)
- Applicant Exhibit 12 - Building Permit 200602035 for 181 Bay Orchard Lane (Parcel A on Behnke plat)
- Neighbor Exhibit 2 - Plat of Subdivision, William P. Martin and Mary Louise Martin (Plat Cabinet E, page 177)
Standing Only
- Neighbor Exhibit 1 - Affidavit of Emily Elders Crodick dated December 7, 2022