HomeMy Public PortalAbout08-12-2020 Mintues BOA Regular Meeting�oN ()F H1__sfI)0RoUG/--1
Minutes
Board of Adjustment
7 p.m. Aug. 12, 2020
Present:
Board of Adjustment — Vice Chair David Remington, Bill Harris, Sean Kehoe, Jenn Sykes and Dustin Williams
Staff — Planning Director Margaret Hauth, Town Attorney Bob Hornik and Senior Planner Tom King
Guests — Arthur Axelbank, Ali Rezk, Beth Trahos and Tori Williams Reid
1. Call to order and confirmation of quorum
Vice Chair David Remington called the meeting to order at 7:01 p.m. Senior Planner Tom King called the roll and
confirmed a quorum with five members present.
2. Agenda changes and approval
There were no changes.
3. Minutes review and approval
Minutes from the regular meeting on March 11, 2020
Member Bill Harris noted a typo in "pointed" in Paragraph 6A under Other Business.
Motion: Member Jenn Sykes moved approval of the minutes as amended. Harris seconded.
Vote: 5-0. Ayes: Harris, Member Sean Kehoe, Remington, Sykes and Member Dustin Williams
4. Hearings in the nature of certiorari
A. Case #BA -01-2020: Appeal from the Historic District Commission's June 3, 2020, denial of an after -the -fact
Certificate of Appropriateness application to allow replacement of upper -story, wood double doors with two
wood casement windows and matching smooth Hardie siding on the front (West King Street) facade
of the house at 330 W. King St.
Remington noted that the appellants are Susan Lieff and Arthur Axelbank.
Remington asked the board whether there had been any ex parte communications regarding this appeal. There was
none.
Remington asked members if they had conflicts of interest. There was none.
Motion: Williams moved to open the hearing. Sykes seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams
Senior Planner Tom King
101 E. Orange St., PO Box 429, Hillsborough, NC 27278
919-296-9472 1 tom.king@hillsboroughnc.gov
www.hillsboroughnc.gov I @HillsboroughGov
Beth Trahos, an attorney with Nelson Mullins, was present to serve as counsel to the Board of Adjustment while
Town Attorney Bob Hornik represented the Historic District Commission.
Trahos asked the appellants and Hornik to give consent on the record that they were willing to participate in this
remote/virtual hearing before addressing the board for the first time.
Arthur Axelbank confirmed his willingness to participate in the hearing remotely/virtually. He introduced Rachel
Axelbank, his daughter sitting beside him, and said she was not planning to speak. He said his co -appellant and wife,
Susan Lieff, would not be attending this hearing.
Senior Planner Tom King introduced the case and entered to the staff report found in the board's agenda packet into
the record.
Axelbank said he has lived in the house for 37 years. He said there is a "widow's walk" over the front porch. There is
no pitch to that roof over the porch, and there were double doors that opened out to the "widow's walk." Over the
years, the doors were problematic and caused leaks. Two or three roofers made temporary repairs, but it was
impossible to waterproof the doors, Axelbank said. Earlier this year, he and Lieff realized a leak was damaging the
drywall in the house. Axelbank consulted with a contractor who said there was no way to waterproof the doors and
who recommended replacing the doors with windows and siding. Axelbank said he and Lieff followed the contractor's
recommendation and did not intend to violate the Hillsborough Historic District Design Guidelines. He added that he
felt he was dealt with fairly and that the commission did not rule against the application because it was made after
the fact. He said Planner Justin Snyder, who provides staff support to the commission, said to go ahead and do the
work and seek after -the -fact approval.
Axelbank said the house is about 100 years old and changes have been made over the years, including additions of a
side porch and a one-story kitchen. He said the arbitrary part for him was the commission's decision that the
homeowners need to return the house to how it had looked for at least 37 years. He said he and Lieff talked with the
commission about door options and the commission had suggested using doors that don't function as doors, which
he felt was arbitrary. He added that the appearance of the front faSade now is not very different from what it was. He
said you can stand on the street and see the doors are not there, but the siding is perfectly matched and the porch
roof, columns, and windows under the porch are the same as before. In Axelbank's opinion, the windows that
replaced the doors were not a significant change. He felt the commission wanted the homeowners to put something
there that looks like doors.
Harris said he looked at the characterization that some of the commission's decision was arbitrary and he looked at
the design guidelines. He noted that the guidelines specifically clarified that a character -defining wall included front -
facing exteriors as opposed to some of the other additions that Axelbank referenced, which were not on character -
defining walls. Harris said the design guidelines are based on what the secretary of the interior recommended for the
United States. The town is simply adopting, applying and enforcing guidelines put out by the secretary of the interior,
so he did not understand why the appellant would characterize the decision as arbitrary.
Axelbank said he understands what Harris said and he is not sure what is meant by character -defining walls. He said
he thinks reverting to one moment in time is not more important than how the house looked at another moment in
time.
Harris asked Hornik what the guidelines' considerations for safety in a building are and whether there are
considerations for old or poor construction. He said he was asking because 100 years after something was
constructed on a housing unit, one might say we wouldn't do that today and it's not safe.
Board of Adjustment Minutes 12 of 10
Hornik first said he consents to this remote meeting and is representing the commission. He then said the guidelines
are not safety -based, but fixed doors were suggested by the commission when Axelbank and Lieff shared their safety
concern during the commission meeting. Hornik added that the doors were thought to have been present for the
house's entire existence. There was nothing the commission said that suggested the doors had to be replaced by
functioning doors. What the commission said was that the commission was concerned with the aesthetic, historic
character of the exterior of the structure. The commission asked the homeowners whether they had explored
replacing the door with something visually the same as the door but fixed in place. Hornik said he has some framed
glass in wood, or windows, that look like doors in his house. He said the commission had considered the safety
factors for this application and that is why commission members had asked Axelbank and his wife to consider
replacement doors that functioned as a window.
Harris said according to the design guidelines and the secretary of the interior's guidelines, changes like what
Axelbank and Lieff made should be avoided. He asked Hornik whether there are circumstances for which a change
like they made is acceptable, and he asked where the line should be drawn in determining whether a change is
acceptable or not.
Hornik said the Board of Adjustment does not draw that line; the Historic District Commission does. He said in his
opinion, the Board of Adjustment does not have the authority to change the commission's decision just because
members disagree with the commission.
Remington agreed with Hornik and said the board's role is to decide whether the commission made its decision in
accordance with its guidelines.
Trahos agreed with Remington and said the courts tend to say there is deference to the decision-making of the
Historic District Commission provided that the Board of Adjustment finds the decision is supported by evidence in the
record.
Hornik said that the court describes arbitrary and capricious as "whimsical." The Board of Adjustment would have to
find the commission's decision to be whimsical, meaning to have no basis in fact, in order to overturn the
commission's decision. He added that it would be improper for the Board of Adjustment to reverse the commission's
decision in this case because the commission's decision was not whimsical.
Axelbank said he doesn't equate arbitrary with whimsical. He doesn't think the commission was whimsical. He
thought the commission members were thoughtful and serious. He would not want to imply that the decision was
whimsical.
Kehoe said he has a background in carpentry. He said 95 -year-old wood can rot and things do need replacement. In
reviewing the packet, he picked up that the windows installed are the same size as the windows in the previous doors
but that they are not in the 3 -over -3 configuration like the originals.
Axelbank agreed and said they are single -pane lites.
Kehoe said it is clearly stated in the guidelines that the replacement needs to be replaced in the like when replacing
because of age and maintenance. You cannot replace a 3 -over -3 lite with a single pane. He asked if choosing full -lite
windows was a conscious decision at any point of the homeowners.
Axelbank said the decision was made expeditiously rather than purposefully. He said that difference, to him, is a
stronger argument than having to make a replacement that looks like a door.
Board of Adjustment Minutes 13 of 10
Kehoe said he can understand replacing a leaky feature, but this feature was on the elevation facing the street; the
physical specifications needed to be the same look as what was being replaced. Even if it's a faux door instead of a
functional door, it needs to match what you are replacing, he said.
Sykes said the windows look different to her when she examines the pictures in the packet. The new windows look
bigger. She thinks it doesn't look possible to do the plastering suggestion. She asked Axelbank whether he has
investigated the possibility of doing plastering and whether that would address the safety concerns and damage to
the drywall.
Axelbank said the windows are the same size. He thought that requiring a triple pane window would have been a
legitimate suggestion, but he didn't see how the suggestion to put in faux doors would answer the problem. He asked
for Sykes to explain her plaster reference.
Sykes said the suggestion of plaster overlay on the siding (to create the appearance of a door frame).
Axelbank said he hasn't investigated that. He said he understands bringing up cost is not in the domain of the board's
decision.
Williams said the Exterior Walls and Windows and Doors sections of the guidelines mention "technically feasible" and
he wants to know the town's definition of technically feasible. This was not immediately answered.
Axelbank said he and his wife think requiring 3 -over -3 windows is a more reasonable request than the faux doors.
Hornik said he wanted to start with explaining the Historic District Commission's authority. He read a portion of N.C.
General Statute 160A-400.9, which provides that no exterior portion of a structure should be removed or demolished
until after receiving a Certificate of Appropriateness. He then read in the same statute that exterior features include
windows and doors.
Hornik said no one thinks Axelbank and Lieff were trying to get something past the commission.
Hornik said the statute states the commission shall prepare and adopt principles and guidelines not inconsistent with
this part of the statutes. He said the commission has the design guidelines that have been reviewed and approved by
the Hillsborough Board of Commissioners and are incorporated by reference into the Hillsborough Unified
Development Ordinance. The guidelines are the law, he said.
Hornik said he wanted to make clear that the commission has the statutory authority to rule on the exterior features
in the historic district. He explained that the Unified Development Ordinance in Section 2.5.1(a) gives authority to the
commission to decide whether changes to buildings within the historic district are appropriate. The Board of
Commissioners empowered the commission to create and enforce the historic district design guidelines in
Hillsborough.
Hornik referred to the record of appeal, specifically handwritten Page 40, which is Page 19 of the guidelines under
Windows and Doors and states if windows and doors are deteriorated beyond repair, they must be replaced in kind.
Hornik pointed out Guideline 1 in the Windows and Doors section, which states windows and doors that contribute
to the overall historic character should be retained and preserved.
Hornik said because the doors were on the front facade of the building, the doors were located on a character -
defining elevation on King Street, a main street in the district. He read the definition of character -defining, found in
the guidelines. He read that "character -defining" means to architecturally refer to details that define its historical
Board of Adjustment Minutes 14 of 10
character. Hornik said the commission determined that the door and the window which replaced it are part of the
character -defining feature of the house.
Hornik referred to Guideline 5 in the Windows and Doors section, which states that a property owner should replace
in kind any portion of a window or door damaged beyond repair. He read Guideline 7 in that section, which states
that it is not appropriate to compromise the architectural integrity of a building by introducing or eliminating historic
window or door openings on character -defining elevations.
Hornik said there was also discussion during the commission's deliberations regarding the Exterior Walls
considerations, which state that exterior walls "establish the overall form and massing" of the buildings. He read
Guideline 1 on Page 39, which states that one should maintain and preserve exterior walls, including their decorative
features and details. He said the commission relied in part on this guideline. He said the commission looked at
photographs of the doors from June 2019 and of the windows that replaced the doors. Based on the discussion, the
photographs, the facts presented and the guidelines above, it was determined that replacing the doors with the
windows was not congruent and was not in keeping with the guidelines for the historic district. Hornik said the
commission's decision was supported by the record and by the guidelines and was in no way arbitrary. He said the
commission never suggested that Axelbank and Lieff just throw something up there. He said doors could have and
should have replaced the old doors. The decision was not whimsical.
Harris said he agrees with what Hornik said about the guidelines. His question is in regards to the appellants
appealing on the opinion that the decision is arbitrary. Harris wants Hornik to address why enforcing the guidelines
was not an autocratic use of authority, given the safety considerations and water damage.
Hornik said when one buys a house in the historic district, a part of what that person is buying is an obligation to
comply with historic district regulations. He thinks everyone knows that. He added that it was crystal clear at the
commission's hearing that the application would not have been approved if Axelbank and Lieff had sought permission
before removal of the doors.
Williams asked if the town's position is that timing should not play a role in the decision made regarding the
application.
Hornik said timing did not play a role.
Williams said he is not sure the record reflects that.
Axelbank offered to show a photograph of how the windows look now that the siding work around the windows has
been finished.
Hornik objected on the grounds that no new testimony can be presented.
Remington said looking at the photo of when it was partially done, you can see a bit of the slope of the porch roof.
What you don't see is the flat part behind it. That's the reason it looks like the window almost touches the porch
roof.
Hornik said there are several HardiePlank boards under the window. Harris added that there is about 2 feet of wall
under the window.
Remington wanted clarification that the use of HardiePlank was not the issue. He saw testimony from Axelbank that
there already was HardiePlank.
Board of Adjustment Minutes 15 of 10
Axelbank confirmed this and then showed the new photo to which Hornik had objected.
Hornik referred to the photo in the agenda packet that shows almost the same perspective.
Remington asked Hornik if 25 years ago the double doors had been replaced by a window, would it be acceptable
within the guidelines if the applicants decided now that they want to go back to double doors to make it more
historical.
Hornik said he could not definitively say, but one of the guidelines is to not falsely recreate a historical look (e.g.,
trying to make something built in 2020 look like it was built in 1920).
Hornik told the Board of Adjustment members that if they disagree with the commission's decision because they
think the window looks OK, that is not a reason to reverse the commission's decision.
Remington and Hornik discussed that there has been some Historic District Commission regulation since the early
1970s.
Sykes asked if the fact that the double doors were obscured by a tree has any impact.
Hornik said no.
Sykes asked about meeting building code regulations.
Hornik said there was nothing in the record about consideration of other features. He reiterated that the appellants
could have replaced the double doors in kind or could have paid to have windows which looked like the doors
installed.
Sykes asked if there are other fake doors or plastered doors in the district.
In replying to Sykes, Hornik made special note for the record that there were no suggestions from the commission to
use plaster.
In closing, Axelbank said he did not believe there was much aesthetic difference between the former doors and the
new windows and it seemed like a technicality whether there was a door or siding. He said the commission directed
him to talk with Snyder to find something acceptable and then return to the commission for a certificate of
appropriateness. He said he could further discuss the deadline for making changes with the commission. To him, it
seemed arbitrary to suggest a fagade. He said his wife came home once with young children and the double doors
were blown open. He is sorry he didn't submit the newest photo at the commission meeting.
King asked Hornik if the new photo shown by Axelbank could be considered clarification. Hornik said he would not
object to it being submitted for illustrative purposes.
Hornik said the issue before the board members is not whether they think the window looks OK but rather whether
the commission's decision was arbitrary and capricious. He said the record shows that it wasn't.
Remington said the board is clear on this point.
Harris said clearly the regulations state what Hornik said. They clearly identify the situation that if it's old and rotted,
it should be replaced in kind. To him, the only question is regarding safety — whether it's arbitrary to make a
Board of Adjustment Minutes 16 of 10
homeowner replace the doors with something other than windows. The regulations are very clear in terms of what
should be done.
Sykes said the doors might not be feasible for safety, but it doesn't seem the commission is mandating doors.
Kehoe said Page 39 of the handwritten pages in the packet, which contains Guideline 1 of the Exterior Walls section,
indicates to him that doors might be mandatory because it states: "Retain and preserve exterior walls that contribute
to the overall historic character and form of a district building including their functional and decorative features and
details." Kehoe said a functioning door could be opened, but a parent is in charge of keeping a child off the roof. He
thinks a door should be replaced by a door. He thinks the replacement windows present a big aesthetic difference
that takes away from the historic character.
Williams said he looked at it in person and he thinks the replacement windows are an aesthetic improvement or
aesthetic neutral.
Williams then asked for others to verify that the commission's minutes are minutes and not a transcript (they are
minutes). He then said one of the first things mentioned by a commissioner is that she struggles with after -the -fact
applications. He would like to listen to a full recording so he could know that the after -the -fact nature of the
application did not play a role.
King informed Williams that the meeting is available for viewing on the town's YouTube channel and the link was
included in the packet.
Williams had missed that.
King said the board has the ability to table the hearing to a date certain to give the board time to watch the video. He
also said the board could table the hearing if Axelbank wished to retain an attorney.
Hornik said he objects to both suggestions to table the hearing. He said the link to the commission meeting was in the
agenda packet and Axelbank has had time to hire an attorney. He said even if the commission had held a grudge
against Axelbank for the after -the -fact application, which he did not think was the case, the record still affirms the
decision.
Remington, said early in this meeting Axelbank stated he thought the commission treated him fairly and did not make
a decision out of retribution. It is clear to Remington that the decision was based on the guidelines cited in the
commission's meeting minutes.
Remington said to him there is a subtle distinction between talking about something that is made to look like a door
versus what he reads in the record as the recommendation for fixed doors. He feels that the guidelines state in the
Windows and Doors section that a door should match what was there. It would have to be similar in materials but
engineered so it can't be bumped open.
Kehoe said a transcription of the commission meeting won't change that the guidelines state the door should be
replaced in kind. He asked Williams what in the minutes makes him balk or makes him want to hear a full
transcription.
Williams said it was Commission Member Jill Heilman's statement that she struggles with after -the -fact applications.
Hornik said he could elaborate.
Board of Adjustment Minutes 17 of 10
Williams asked Hornik to do so.
Hornik said Heilman commented that after -the -fact applications are always difficult because they always put the
commission in a bad spot because it is difficult to say no to work that has already been done.
Remington asked Axelbank if he concurs with Hornik or heard Heilman's comment differently.
Axelbank said he is not eager to table this. He does not feel that he needs an attorney. He said he had wondered if
the commission would hold the after -the -fact application against him and if he had ruffled feathers, but he said he
and Lieff had paid their fine and he honestly did not think there would have been a different outcome if they had
submitted the application before the work was done. He said he agreed with Hornik on that. He said his position is
not changed that the aesthetic outcome is not that different and that the replacement could not be doors because
there would be no way to seal the bottom. He said they would have to have something attached to the framing and
floor joists. He said the part about the after -the -fact decision is it creates a larger expense, but he would not use that
in his defense. He has too much integrity.
Sykes said the safety issue that the commission doesn't define could impact the stability of the house. The gap where
a leak could occur would be her concern.
Harris said there is no question to him that the commission did what it was supposed to do, but safety is not part of
the commission's consideration. He said the homeowner went for the safety option, which does not necessarily
match what the commission looks at. He kind of agrees with both. He said Axelbank has to return to the commission
with a new application by December if the board upholds the commission's decision. He said Axelbank has to explore
options and Axelbank could tell the commission at that later meeting that three people have looked and cannot do a
reasonable job to prevent water damage.
Sykes said if Axelbank goes before the commission again and chooses to appeal a second decision to the Board of
Adjustment, then it would be time for the Board of Adjustment to further explore the safety considerations.
Remington said it was pointed out in the commission meeting that houses have doors without having a leak problem.
There was belief at the commission meeting that there could be a solution which is safe and meets the basic historic
district requirements.
Kehoe reminded the board to stop kicking around hypotheticals and instead focus on judging whether the
commission did its job correctly.
Williams said in general he does not understand why the Axelbank double doors are an historical feature when
several houses in the district have casement windows. He said the onus is put on the property owner when a
commission decision is appealed to the Board of Adjustment.
Remington said it was time to make a motion that the commission did or did not follow the guidelines and make a
decision within its legal authority.
Trahos said that's a fair representation of the choices.
Motion: Harris moved to uphold the Historic District Commission decision because the commission conducted
the hearing and case in accordance with its legal responsibilities. Kehoe seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams.
Board of Adjustment Minutes 18 of 10
Remington said the board sometimes sees after -the -fact applications and it puts people in a bad position. It's not
something anybody takes lightly. He hopes a workable, reasonable and safe resolution is achieved with Axelbank and
Lieff and the commission.
Axelbank thanked the board for its time.
Remington closed the hearing.
Hornik and Trahos excused themselves, as they were only needed for this item.
5. Quasi-judicial evidentiary hearings
A. Case #BA -02-2020: Conditional Use Permit — Alhamd Auto Trade requests operation of a motor vehicle sales and
rental business involving use of an office space in the existing multi -tenant building at 960 Corporate Drive and
including the display of five vehicles for sale in a designated portion of the existing parking lot.
Remington asked if anyone on the board had any ex parte communication. There was none.
Remington asked if there were any conflicts of interest. There was none.
Motion: Harris moved to open the hearing. Kehoe seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams.
Remington noted that this is a quasi-judicial hearing.
Tori Williams Reid, King and Ali Rezk were sworn in.
King noted the applicant and property owner had both agreed to the remote/virtual hearing on this matter. King then
introduced the staff report in the packet into the record and summarized it.
King explained the applicant wants to keep five cars on site to sell online. Appointments would be made for potential
buyers to look at the cars.
He reviewed the nearby properties and zonings.
King explained the board needs to determine whether a traffic impact analysis is needed. He doesn't see this as a big
traffic generator, but the analysis would be required for a conditional use permit. He explained the board has
discretion to determine whether the analysis is needed. He said he has been to this parking lot many times during the
day and it is never very full.
King mentioned there are waiver requests.
Regarding a sidewalk waiver, Dustin Williams asked about how the sidewalk cost would be assessed.
King said it would be applied to the property in its entirety. King said his thoughts on the matter is the board can
require sidewalk, payment in lieu or waiver; there is no physical construction at the site. That's usually where you
would expect to find the sidewalk requirement being triggered.
King reviewed the standards of evaluation, as required by Sub -paragraph 5.2.29.1 in the Unified Development
Ordinance as outlined in the staff report located in the agenda packet.
Board of Adjustment Minutes 19 of 10
He said the board needs to verify that these standards are being met with this proposal. The board discussed the
standards and staff analysis with King to clarify any questions.
Tori Williams, representing the property owner, said the property owner is OK with the plan.
The waiver request was from Subsection 6.17 in the Unified Development Ordinance, requiring sidewalks to be
installed. The board discussed that sidewalks were not required when the site was developed. Planning Director
Margaret Hauth agreed. The board agreed that granting a waiver was fine because of the considerations staff included
in the agenda packet.
King then reviewed the findings of fact analysis found in the agenda packet. The board discussed the findings and staff
analysis with King to clarify any questions.
Motion: Harris moved to approve the application with the sidewalk waiver and no conditions. Kehoe seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams. Nays: None.
Waiver: The board granted a waiver to not require a sidewalk to be constructed along the property's street
frontage along U.S. 70-A East and to not require payment in lieu of construction.
Remington closed the hearing on this matter.
6. Other business
a. Election of chair and vice chair
Remington entertained nominations.
Motion: Williams nominated Harris as chair. Sykes seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams. Nays: None.
Motion: Sykes moved to elect Kehoe as vice chair. Harris seconded.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams. Nays: None.
7. Committee and staff reports
Members gave brief updates.
8. Adjournment
Motion: Sykes moved to adjourn at 9:52 p.m.
Vote: 5-0. Ayes: Harris, Kehoe, Remington, Sykes and Williams. Nays: None.
Approved:
Tom King, AICP, CZ
Senior Planner
Secretary to the Board of Adjustment
Board of Adjustment Minutes 1 10 of 10