Sunday, November 27, 2022

‘Error of law’: Neighbors push back on historic district project

A diagram showing mature trees’ root systems around 411 S. Second St. (Courtesy Jeff Mason)

WILMINGTON — Neighbors are battling to save trees, keep flooding at bay and preserve the look of Wilmington’s Historic District. Yet, their concerns have been overlooked twice now, as they decry city leaders for disregarding their own rules.

A home project at 411 S. Second Street will be allowed to move forward after the City of Wilmington Board of Adjustment denied an appeal by nearby business owners. Property owner Larry Beard wants to build a 2,800-square-foot garage fit for three cars, a new driveway, a 37-foot in-ground pool and hot tub, and one-story cabana. 

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His neighbors cite concerns over potential tree damage, drainage issues and aesthetic incongruities. They also claim the Historical Preservation Commission, which approves exterior changes to homes in Wilmington’s Historic District, went against its own design standards when approving the “out-of-scope” project earlier in the summer. 

The HPC first reviewed the application in April for additions to an historic home built in 1893. Neighboring property owners argue the project violates two of the commission’s guiding documents. They say a paved driveway, created from the right-of-way shared with adjacent homes, will exacerbate flooding problems. The construction of a garage and pool, which will take up a large portion of the property’s open space, could also cause a neighbor’s trees to decay.

Leading the opposition is Jeff Mason and Jennifer Blomberg, owners of the C.W. Worth House Bed and Breakfast, located at the rear of Beard’s property. They appealed the HPC’s decision to the Wilmington Board of Adjustment on Sept. 15. 

“We’re trying to protect the trees, trying to make sure the historic downtown is preserved and remains historic,” Mason said.

In their appeal, Blomberg and Mason argued the HPC breached the Wilmington Design Standards, citing the following passage: 

“The purpose of the Historic Preservation Commission is to protect the special character of Wilmington’s historic districts by preventing changes that are incongruous to the districts as a whole.”

They also claimed the HPC decided the fate of this project in isolation from surrounding properties, violating the following standard: 

“All design decisions about individual properties should be made in conjunction with what is appropriate for the surrounding properties and the district as a whole.”

Mason first shared his concerns at the HPC’s April meeting, which was mostly focused on right-of-way and aesthetic issues. Mason, Beard and others share a right-of-way in order to reach their homes. As part of the project’s plans, the right-of-way would be paved for Beard’s driveway. Mason said he was concerned the move would restrict the bed and breakfast’s parking.

“They have a driveway, [but] they want to use the easement to access that garage instead of their driveway,” Mason said. “So we’ve been trying to fight this, of course. We’re worried about all the VX dirt traffic down the easement alleyway.”

Members of the HPC questioned how the access would function and encouraged the two neighbors to work together on a solution.

They also asked whether the garage, proposed to connect to the house, would stand taller than the original building and raised concerns over whether the garage and cabana would be seen from the road. 

The project’s architect Rob Romero, representing Beard, said it would be concealed with more trees the owners plan to add in the future.

Four others spoke in opposition, including Sean Maxwell, who lives at 405 S. Second Street and shares the right-of-way as well. He worried over adequate drainage if it was paved, demonstrating through photos of the flooding present during thunderstorms. Maxwell claimed it would worsen if covered in concrete. 

“Water will take the easiest path,” Maxwell said during the meeting. “With all this impervious surface, is there a stormwater plan to protect neighboring property?” 

City attorney Melissa Huffman said, legally, it could not be considered by the commission since a stormwater plan isn’t required for a lot this size. The applicant agreed to pave the right-of-way with pervious material, somewhat satisfying stormwater concerns.

Huffman added the applicant does not intend to remove any trees for the project.  

“Well, [that’s] absolutely impossible,” Mason told Port City Daily. “You have a lot covered in trees. How are you going to put in a garage and a pool and a hot tub?”

The April meeting was continued to June, when Mason brought up potential damage to mature trees in adjacent yards. A 30-inch diameter pecan tree on the property line of his bed and breakfast is a prime example. Mason and Blomberg hired an arborist to survey the tree, which they say is threatened by Beard’s project.

They presented findings to the HPC in June. According to a conservation suitability survey completed by Bartlett Tree Experts, the tree was found to have few structural defects and a moderate to good construction tolerance.

However, the report states 50% of the root system is likely to sustain damage, causing the tree to receive a 56 out 100 suitability rating. Anything below a 59 is considered poor. The report indicates “these trees can be expected to decline during or after construction regardless of management.” 

The study was only conducted on the pecan tree, but Mason said the arborist expected other trees in the area will suffer the same fate if the project continues as planned because their roots extend under Beard’s property. Located nearby are two more pecan trees, two oak trees and one elm — all on adjacent properties. 

A dying tree is a safety issue to nearby homes, especially in a region regularly in the path of hurricanes. Pending a major weather event, Mason said the tree would most likely fall in the direction of the bed and breakfast, a 119-year-old building. Any tree removal to prevent that circumstance would have to be covered by the property owner — in this case, Mason.

Huffman remarked the problem is outside the purview of the city government.

“If something happens to one of the neighbors’ property while construction is being done, that is a private matter between those two neighbors,” Huffman said during the June meeting. 

The commission voted to grant a certificate of appropriateness to the projects, despite property owners’ concerns. Commissioner Ron Wilson was the only member to vote against approving the project. 

Trees within the Wilmington Historical District are exempt from tree mitigation standards and removal is determined by the HPC. The commission’s landscaping guidelines in the Wilmington Design Standards state “trees are an important natural feature in the historic districts” and it is “important that mature trees remain intact and undisturbed.”

Out of options — aside from court — Mason and Blomberg fear the repercussions of the HPC’s decisions on nearby homes, along with the precedent it sets for future approvals. 

The Secretary of the Interior’s standards recommend against “allowing loss, damage, or destruction to occur to the historic building, its site, or setting by failing to evaluate potential future impacts of natural hazards or to plan and implement adaptive measures, if necessary to address possible threats.”

At the Sept. 15 appeal hearing, board of adjustment Vice Chair Mark Saulnier raised concerns over the HPC decision. 

“They may not have considered the Wilmington Design Standards and the Secretary of the Interior’s standards when it comes to the impacts of the project on the adjacent properties,” Saulnier said during the meeting. “To me, this project is out of scale. You’re looking at covering a significant amount of land behind these homes with concrete, which to me, seems incongruous with the other properties around it.”

If the commission did not follow the decision standards, that would be considered an “error of law.” Saulnier suggested the issue be returned to the HPC to consider further. 

Still, the board of adjustment voted to deny the appeal 4 to 1, concluding no error of law was made by the HPC. Saulnier was the only dissenting voice.

According to city spokesperson Dylan Lee, the litigation from the board of adjustment appeal is still pending. The board’s written decision should be released by Oct. 20.

Editor’s Note: A previous version of this article stated HPC Commissioner Michael Smith voted against approving the certificate of appropriateness, however, it was Commissioner Ron Wilson who voted against it. PCD regrets the error.

Reach journalist Brenna Flanagan at 

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