Thursday, March 30, 2023

Zoning restrictions force homeowner to either remove 100-year-old trees, or not build a garage

Large oak trees like these adorn Dale Sutton's property in New Hanover County, but now he might have to remove several of the since the county did not grant him a variance for construction (Port City Daily photo/ JOHANNA FEREBEE)
Large oak trees like these adorn Dale Sutton’s property in New Hanover County, but now he might have to remove several of the since the county did not grant him a variance for construction (Port City Daily photo/ JOHANNA FEREBEE)

NEW HANOVER COUNTY — When Dale Sutton bought his property in 1984, one of the reasons he chose the land was for the large oak trees that sat on the 40,000-square-foot property – about 25 in total. In 1985 when his home was built he offset the house to minimize the number of trees that would be impacted by the construction.

Now, 33 years later he is being told that if he wants to build a new garage on his property, some of the trees must come down or he cannot build. This is due to to New Hanover County ordinances that were not in place when the property was purchased. So, with the hopes of saving some of the massive oaks, Sutton requested a variance from the county to allow him to construct his garage without being forced to kill the trees.

On Oct. 24, the Zoning Board of Adjustment voted to deny Sutton’s request for a variance that would have allowed him to construct an approximately 1,000-square-foot detached garage 10 feet from his own property line instead of the 20-foot requirement for rural-agricultural zoning – a designation that was not in place in 1984. The 20-foot requirement would force Sutton to fell some of the oaks.

Granting a variance is something that is done across municipalities and counties somewhat regularly, in fact, the same day Sutton’s request was denied, another variance was approved.

The oak trees have all been on his property since the land was purchased and Sutton estimates the trees are at least 100 years old due to their size.

Related: County commissioners approve 400-plus residential units off Gordon Road despite opposition by planners

Current Planning and Land Use Supervisor Ben Andrea explained the board’s decision.

“To approve any variance, four conclusions are required to be reached based on competent, material, and substantial evidence and testimony: 1. Unnecessary hardship would result from the strict application of the ordinance. 2. The hardship results from conditions that are peculiar to the property, such as location, size or topography. 3.The hardship did not result from actions taken by the applicant or the property owner. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved,” Andrea said.

The board voted on to deny the variance because it could not conclude Sutton would face “unnecessary hardship” without a variance, nor did its members feel any hardship that does exist are peculiar to his property, according to Andrea.

What changed?

“There were no zoning requirements when I bought the property and I built my house. There were restrictions that were set up by the developer … and their restrictions were you could build a structure or house 10-feet off of the property line or 5-feet off the back line,” Sutton said.

Sutton is not blaming the county’s zoning officials for denying the request; in fact, he believes that had a neighbor not voiced opposition to the request, the board would have approved the change.

Opposition from his neighbors was unexpected, Sutton said. He had originally spoke with his neighbors and asked if anyone had any objections to him constructing the building and heard none. Sutton also said he would have likely not gone through the hassle of requesting the variance had he known about the objections from his neighbors.

Another item of mention for Sutton was the fact that, according to county ordinance’s for RA zoning, minimum lot areas must be 30,000 square feet, something that the majority of his neighbors do not meet, with the majority of the properties being only 20,000.

While the neighboring lots have been grandfathered into the RA zoning district, his neighbors who opposed the construction of the garage have their home only 10 feet off of the property line – the exact spacing Sutton had hoped to use for his garage.

Sutton said he would not request an appeal for the variance and he was not yet sure what would be next for his garage. There are additional zoning ordinances that would allow him to construct a building where he would like, just not to the size he was initially requesting.

“I’m not going to appeal it. I have to live with my neighbors, I don’t expect them to sell their house and I’m not selling mine … I was asking to build a single story building 10-feet off the line, but the zoning will let me build a 24×24 building two-story building five feet off the line,” he said.

Michael Praats can be reached at

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