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Kure Beach Board Of Adjustment Rules On Fireplace And Well House

The Kure Beach Board of Adjustment recently upheld a ruling by the Town's building inspector regarding a new home with a cantilevered fireplace and well house located in the setbacks.

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.
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 said the well house covering irrigation well is covered by Town ordinance Sec. 19-320. - Control of setbacks, that says that the only structure that can be located in the setback is a fence or beach crossover.
 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." 
He explained that real estate signs couldn’t be located in the Town's right-of-way.
He said a small cedar tree was addressed because it is located in Town right-of-way and has the potential of growing very large and creating visual difficulties at the intersection.
Batson explained, "The Lawings provided proof that they did not plant this tree. I am not withholding the C.O. for this tree removal."
Batson addressed other issues he said couldn’t be ruled upon by the Board, but felt they needed to be addressed. 
He explained, "The other issues that I had pointed out are from the North Carolina Building Code and cannot be ruled upon by the BOA. However, I will go through each of them since it was introduced as part of the appeal."
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."
Batson said he had inquiries as to whether the irrigation well was installed legally.
He explained, "Since the governing body for well installation is the NC Division of Water Quality, I’ve asked for a letter from them stating it is legally installed.
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."
He said he had not heard from the North Carolina Division of Water Quality about the status of the well.
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. She said, "When they were loading the window a fork-lift went through it. I don't think that's anything wrong with the window when that happens. We didn't have to ask them to fix it. They are standard windows that have been used by other builders at Kure Beach. They certainly were not a special order."
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 John, "said he trusted us to put the sod out. The yard was completely ready for the irrigation system and the palm trees were there. The only thing that wasn't down as far as the landscaping was the sod. 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."
Lawing said, "The stickers were on the windows at the framing inspection when an inspector is supposed to check. Why would you wait until a house is complete and a builder has spent hundreds of thousands of dollars to see if the right windows were in place? The stickers were still there at the final inspection but once we got power we cleaned up the house."
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, "You have it there, concerning setbacks, which says balconies and similar features can extend 18 inches into the setback along with a number of other structures most of which goes to the ground. It eliminates carports and porches but it does not say you can't cantilever. 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.
She said, "It was put in July 24, 2012. Why would John wait six months if he thought there was a problem? He never mentioned it to us until February."
She said, "Our little three, by three by three... foot removable well house is completely removable by lifting it off. You have to be able to do that if you want to work on the well."
She said the surveyor told them he doesn't list removable structures because they may be moved in the future. She said the ordinance
states, "Any structure requiring a building permit shall not be permitted in the setback area with the exception of a fence and beach walkovers. A three by three by three does not require a building permit. North Carolina Building Code says a structure 12 by 12 by 12 feet requires a building permit."
She said the well house is only a few inches into the setback.
Lawing said the real estate signs have nothing to do with the house passing inspection and, "We can point out hundreds of signs on the right-of-ways" in Town.
She said the little cedar tree was there when they bought the property and other people have landscaping in the right-of-way.
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 of 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 string put up around the yard is to keep people off of the sod while taking root.
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."
Town Attorney Andy Canoutas asked the Mayor if he expects Batson to carry out his duties as building inspector to the letter of the law and took an oath to do so. He asked Lambeth, "Can you tell us which law he has violated in the inspection of that house?"
Lambeth said, "I don't know of any law he has violated."
Canoutas said, "So he has carried out his duty so far as you know as he is sworn to do."
Lambeth said, "He has carried out his duty."
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 Board couldn’t rule on the window, the signs, the tree, and furniture. He said, the only issue the Board can deal with is the irrigation well house and overhang for the fireplace encroaching into the setback area between the house and road. The Board also said they could not rule on the performance of the building inspector and its an issue between the Town and homeowner.
The Board discussed "sliding" over the little well house to get it out of the setback area as a solution.
The Board voted to uphold Batson's ruling that the well house is in violation and has 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.
They have hired an attorney and will appeal the decision.