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Kure Beach Board of Adjustment Denies Variance For Fireplace

Managing Editor

KURE BEACH - The Kure Beach Board of Adjustments upheld a ruling by Town Building Inspector John Batson regarding a home at 242 N. Third Ave. at their March 26, meeting.
The hearing was requested by Richard and Ann Lawing due to the building inspector ruling a well house and cantilevered fireplace were located within the required setbacks on the property.
On August 27th, the Board denied a variance to permit the  cantilevered fireplace.
In March Batson testified at the hearing, "The appeal before you today is for my interpretation of specific codes in our ordinances, and also for NC Building Code issues upon which the Board cannot rule. 242 N. 3rd Ave. is a brand new house that has been built by the Lawings. The house is located in B-2 Zoning District."
Batson explained, "In November, I was asked to complete a final inspection. The final inspection failed because I did not have a final as-built survey done on the property, and the landscaping was not installed. At that time, the Lawings asked me to turn on the power so that they could install the landscaping and water with an irrigation well. I obliged on the condition that I received the as-built survey first. On November 6th I received the as-built survey. I turned on the electricity as I said I would. Normally, I would have required a $1000 bond to do this since the final inspection had not been completed."
He explained, "After review of the as-built survey, I noticed that the well house was located inside the side setback, and the fireplace was hanging 2ft into the side setback. (This is a corner lot, and the side setback of issue is required to be 10’.) Additionally, I drove past the property and noticed multiple real estate signs, a cedar tree, and stakes in the Town right-of-way."
Batson explained, "Fireplace hanging 2ft into side setback. Town ordinances do not provide for any cantilevers into the setback area. In the Lawing’s defense, their building plans did show a fireplace on them, but the plot plan did not, neither did the final as-built survey. The purpose of the plot plans and surveys are to show me that impervious surface restrictions are being met, and the setbacks are being maintained. So anything covered by a roof, concrete or anything in the setback area should be noted on the survey."
He explained the Town ordinance Sec. 19-329. - Modification of required yards, does, "allow for some things to extend (18) eighteen inches into the setback. They are as follows."
The ordinance states, "Architectural features such as fire escapes, cornices, eaves, steps, gutters, buttresses, open or enclosed fire escapes, outside stairways, balconies, and similar features, but not carports or porches, may project not more than eighteen (18) inches into any required yard.
Batson said, "A fireplace is not in this list."
Batson addressed other issues he said couldn’t be ruled upon by the Board, but felt they needed to be addressed.
He said, "The Board is probably aware by now of the issue with the window. I broke a window during the framing inspection in July. When I do a framing inspection, part of the inspection includes looking at windows to make sure the right ones are being used. The new Impact Glass requirement is easy to test by lightly banging on the window. The difference between an impact glass window and a regular window is like hitting a brick wall, then hitting wooden wall. When I hit the top sash, it shattered. The impact pane was on the outside of the top sash of the brand of windows installed. I was told immediately by the Lawings that another window had come in broken, and that it would be replaced."
He explained, "On November 6th, the Lawings called the Mayor and informed him of the window and how I had broken it. The Mayor forwarded this on to my commissioner Emilie Swearingen. Ms. Swearingen told the Lawings that the Town would pay for the window. The Town sent a check to the Lawings on February 1st."
He explained, "My request for a receipt showing the windows bought and installed is purely for my protection as well as the Town’s. While the windows appeared to be correct, the window that broke simply shouldn’t have. It is a request that I have made numerous times of other contractors for other reasons." He said, "Furniture inside the house. The NC Building Code and Administrative Policies states that a Certificate of Occupancy must be issued prior to the building being occupied. Furniture within the building implies occupancy."
Batson said he wasn't sure how much of the fireplace overhang is in the setback. He said, "Judging by the as built survey the Lawings provided it appears to be two feet but when I requested that the survey be redone to include the fireplace is when the Lawings appealed to the Board of Adjustments."
When asked by the Board if the overhang was installed, "at the rough-in?" Batson explained, "It would have been there during the framing inspection, yes sir." He said the original building plans show the fireplace but the plot plan did not.
Property owner Ann Lawing said her husband Richard is the general contractor and has been building homes for over 40 years. She said, "When John Batson came for a framing inspection on June 29th, he was mad because I had called five or six days straight to get him to make an inspection." She said she left messages every morning to see if Batson was in and, "I finally called the Mayor to find out what to do. John came and said he forgot the inspection. I had called him everyday and left him a message every day. In the inspection he locked himself out on the third level porch and had already called the fire department when we discovered him. There were four women, friends of ours there, looking at the house with us and they saw what happened."
She explained, "He proceeded to bang on the window with his hand and said it broke when he tested it for impact glass. It was not just a crack. He hit it ... and the inside glass shattered because inside glass is not impact, its the outside. The outside glass did not break. The inside shattered. The impact glass is written on the window. Why would you slap it? You don't believe the little inscription on it? What inspector would slap the glass with their hand? The impact glass was on the outside. As a licensed builder this is new to Richard. All six of us saw what happened and it scared the four women."
Lawing said she told Batson that a window in another part of the house was broken when delivered and it would be replaced. They are standard windows that have been used by other builders at Kure Beach.
She said Council member Emilie Swearingen told them they had installed the windows backwards but, "We don't know how you can do that."
Lawing said, "We've had power since November 7th and would have been moved in the house if the one we lived in had been sold. We had no clue we were not signed off or that we didn't have a final inspection. We had to hear it from a third party. When I called for a final inspection in late October, again I had to call three times, we didn't ask for any favors about turning any power on. We asked for a final inspection. John went through the house and the yard and said everything looked good. He said it turned out nice."
She said, "He asked for a plot-plan and we called Stewart Jones who is a professional land surveyor who we've used for many years and Stewart came and did the plot-plan and height elevation which we hand carried to John and he said everything was ok and he would call it in for final power. We asked for a final inspection. What was he there for? If there was anything wrong he should have said so then. He asked about grass seed and we told him we were putting out sod and would wait until we had power so we could irrigate."
She said temporary power was available, but they wanted to wait until the permanent power was cut on to hook up the irrigation.
 She said, "Had he asked me for a thousand dollars I would have sure told him just wait until we get the sod out and then do the inspection. John did not know anything was wrong on the building permit, he didn't say anything was wrong. When we carried the plan to him he said it looked fine and I'm going to turn it lose for power."
She explained, "The cantilevered fire place was shown on the submitted plans... and if there was a problem John should not have issued us a permit. We even told him and pointed out to him the cantilevered fireplace. A plot-plan we submitted showed the foundation plan. It didn't show cantilevers, no, it showed the foundation plan. It showed the lot, 50 by 100 foot lot, and where the house was sitting."
Lawing pointed to the Town's ordinance stating, "There are cantilevers all over Kure Beach. I've got pictures here that show cantilevers at houses that are completed and people are living in on Kure Beach."
She said, "If we had known that it had to go inside the setback we could have certainly done that but we've finished the house now. And all of a sudden he decides it." She said another surveyor said they do not put parts of the structure that do not go down to the ground and the cantilever does not reach the ground. She said, "Nothing blocks any emergency vehicles and it’s completely accessible."
Lawing said the well replaces an old existing well that had been on the property for many years and they had work done on the well so they could once again use it.
Lawing said the small three foot square well house is only a few inches into the setback area and was installed July 24, 2012 and, "Why would John wait six months if he thought there was a problem?" She said the well house is removable and did not require a building permit and the ordinance only talks about structures in the setbacks that require a building permit.
Lawing said, "We put out twice as much sod out as we would have had to" and put sod in the right-of-way to make it look better for the Town.
She pointed out other violations in Town and said, "We don't care but we just don't like to be the one that's being told to move everything. If Kure Beach decides to enforce all of the ordinances they will certainly have their work cut out of them. The signs and the little tree can be moved, but why pick on us."
She said, "John cost us the sale of the house which we put on the market."
She said, "When we finished up with our bills... and saw how much it would cost to replace the window we thought John should be responsible for paying it. After six months he had offered to pay for it, he hadn't said anything at all about paying for it, and its not very professional, I don't think, to not at least offer something along that line and there is someone here that can testify he said he would make it hard on us. He's mad."
She said they thought the final inspection had been done and her husband's been in the building business for over 40 years. She said, "We never picked up a CO. I know that may sound a little unusual but when a building inspector says we are final, we think we are final.... When we get power we think we are final."
Kure Beach Mayor Dean Lambeth said, "I received a call from Ms. Lawing and she said she had asked for an inspection on the house five different times and it was not done. When I called John he got upset and told me I should tend to the Mayor's business which I thought this was part of the Mayor's business. She called again when they had the problem with the window. I assume that John probably thought the Lawings would let the window go. They brought it to the attention of the Town. We were sitting in the clerks office and she said why did you just not bring it to me and we would take care of it and then John said he would make it hard on the Lawings in more ways than one for them to pay for that window."
Batson later denied saying he would make it hard on the Lawings but that he and Lambeth sometimes have debates on various issues.
Board member Harry Humphries said, the only issue the Board could deal with is the irrigation well house and overhang for the fireplace encroaching into the setback area between the house and road.
The Board voted to uphold Batson's ruling that the well house was in violation and had to be moved out of the setback area. The Board also voted to uphold Batson's ruling that the overhang for the fireplace is in violation by encroaching into the setback area. The Board felt it is the contractor’s responsibility to know and adhere to the Town's ordinances.
One Board member said placing the fireplace inside the house would not lead to a total loss of the house.
Both votes were unanimous.
The Lawings say it’s created a hardship for them because Batson approved plans showing the fireplace overhang and nothing was said until after the house was completed.
The Lawings later applied for a variance from the Board of Adjustments regarding the fireplace which was heard on August 27, 2013.
Ann Lawing said an error was made on the part of the building inspector and their error was not researching it further.
She said the situation has created a hardship and they can't even sell the house.
One Board of Adjustment member said she was ok issuing a variance because anyone driving down the street would not notice six inches or even two feet and called the situation unique.
Board member Harry Humphries said granting the variance would preserve the spirit of the ordinance. He said, "It allows so many things to go out and it allows it to go out 18 inches and all the Lawings are doing is asking us to give them six more inches in a very small confined space."
He said a house built right up to the setback line with a window air conditioner would be encroaching into the setback but they would not act on it.
He said, "I would tend to say maybe we ought to give some other consideration to this... they are only asking for six inches. I personally feel the spirit of the ordinance is going to be kept."
The Board voted 4 to 1 to deny the variance request citing the findings of fact, not personal opinion, did not determine a hardship. 
The Lawings can appeal to the New Hanover County Superior Court within 30 days.
Ann Lawing said, "I'm very disappointed because there is so much of this kind of thing going on in Kure Beach and we are being picked on. And I don't know why. We've lived in Kure Beach, in Wilmington, we've been in this area since 1964 and never had a problem like this before. We were told this was a very intelligent board when I applied, but I have a tape that proves otherwise because there was a meeting after the meeting the last time we applied where John Batson and some members of the Board... celebrated the victory over us. Talked about us like we were dirt, ridiculed us, made fun of us and just on and on for twenty minutes after the meeting was over. I've got that tape and I can play it for you."
She said it was not professional to treat them that way.
She said an alternate member, Bryant Bass, that was on the board at the prior meeting in March is a builder in the area and, "Obviously he's not going to go against the building inspector. Number two, him and Richard had a tremendous confrontation of Bryant harassing some of our workers and they were complaining about it and Richard got after him about it and they had a falling out so to me that was a conflict of interest."
She said they had a buyer who backed out because they thought they had a Certificate of Occupancy but were later told they did not due to the fireplace and other issues.
Chairman Peter Boulter said they can't deal with personal issues, only with the facts of the case and they ruled as fairly as they could.
Lawing said they trusted the building inspector and in the process his error created a hardship not of their making.
Lawing said they plan to appeal the ruling in Superior Court.