TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Will Deaton, MPA, AICP, CFM, CZO - Planning & Zoning Manager
Demetrios Moutos - Planner I
DATE: April 8, 2025
RE:
Title
A25-05. Order of Approval - Findings of Fact: A Variance request to address height and fence/wall limitation at 5224 Bragg Boulevard (0418392966000), owned by Jose F. Rodriguez and Liz I. Rodriguez.
end
COUNCIL DISTRICT(S):
Council District(s)
District 4 - D.J. Haire
b
Relationship To Strategic Plan:
Goal 2: A Responsive City Government Driving Economic Diversity and Sustainability
• Objective 2.1: Strengthen and diversify the City’s tax base to enhance long-term fiscal stability.
Goal 4: A Thriving, Livable Community
• Objective 4.5: Foster vibrant, well-connected neighborhoods that enhance residents’ quality of life.
Executive Summary:
My Heavenly Sweets Inc. has submitted a variance request to the City of Fayetteville for the property located at 5224 Bragg Boulevard (Parcel ID: 0418392966000) in Cumberland County, North Carolina. The request seeks relief from the height and fence/wall limitations outlined in Table 30-5.D.4 of the Unified Development Ordinance (UDO) to permit the construction of a taller rear wall.
The Zoning Commission held an evidentiary hearing for this case on March 11, 2025. Only the applicant spoke in support of the request, and no individuals spoke in opposition. Following a brief discussion, the Commission voted unanimously (4-0) to approve the variance.
In accordance with Section 30-2.C.14 of the UDO, variances are intended to provide relief from dimensional standards in cases where exceptional conditions-beyond the control of the property owner-result in a unique hardship under the strict application of the Ordinance. Variances do not modify permitted uses or conditions of approval and are intended to be granted only under limited, well-justified circumstances.
Background:
• Owners: Jose F. Rodriguez and Liz I. Rodriguez
• Applicant: Jose F. Rodriguez
• Requested Action: Approval of a variance to allow for a six-foot rear wall, exceeding the height and fence/wall limitations specified in Table 30-5.D.4 of the Unified Development Ordinance.
• Zoning District: CC (Community Commercial)
• Property Address: 5224 Bragg Boulevard
• Size: 1.08 acres ±
• Existing Land Use: My Heavenly Sweets (Bakery and Restaurant)
• Surrounding Zoning and Land Uses:
o North - CC (Community Commercial, Strip Commercial/Easy Wash Dry Cleaning.
o South - CC (Community Commercial, Tire Shop and Building Materials Store.
o East - SF6 (Single-Family Residential 6), Bonnie Acres Subdivision.
o West - CC (Community Commercial), American Flag Self Storage, Ace Pawn Shop, and Anointed World Ministries.
Issues/Analysis:
The subject property at 5224 Bragg Boulevard is classified as a through lot, meaning it has street frontage along both the front and rear lot lines. According to Table 30-5.D.4 of the Fayetteville Unified Development Ordinance (UDO), through lots are considered to have two front yards, limiting the maximum height of fences or walls in both yards to four feet.
The applicant is requesting a variance to construct a six-foot wall along the rear lot line, seeking relief from the front yard height restriction applied to through lots.
Basis for the Variance Request
To be approved, a variance must demonstrate that strict application of the UDO creates practical difficulties or unnecessary hardships due to unique circumstances specific to the property. The applicant has identified the following justifications:
• Through Lot Classification: The dual frontage designation imposes stricter limitations than those applied to standard commercial lots, where six-foot rear fences are allowed by right.
• Security Concerns: The applicant cites previous incidents of trespassing and theft, noting that the rear of the property is secluded and vulnerable to unauthorized access.
• Employee Safety: Employees regularly park in the rear of the property, where current fencing conditions limit visibility and access control, creating potential safety risks.
The applicant contends that these conditions constitute a practical difficulty not of the owner's making and that the requested six-foot wall is the minimum necessary to ensure reasonable use of the property.
Consistency with UDO Intent and Surrounding Context
The property is zoned CC (Community Commercial), where enhanced security measures, such as fencing and walls, are standard. The proposed six-foot wall aligns with the height typically permitted for rear-yard fences in similar commercial districts.
According to the applicant, the wall would:
• Improve site security and help deter unauthorized access;
• Align aesthetically with the existing building and surrounding commercial properties;
• Pose no visibility or public safety hazards;
• Maintain compatibility with adjacent land uses, which include a lawnmower repair shop and vacant lots.
Variance Evaluation
Approval of a variance must be based on the evidentiary record and a determination that the request meets the criteria outlined in the UDO. These include demonstrating the following:
• A unique hardship due to site-specific conditions;
• That the request is the least deviation necessary;
• The proposed relief is consistent with the intent of the ordinance.
Limitations on Variance Justifications
The following do not constitute valid grounds for a variance:
• The existence of nonconforming or conforming uses elsewhere;
• A request for a use not permitted in the zoning district;
• Economic hardship or the prospect of increased profitability.
Findings of Fact (Based on Applicant’s Responses):
The following findings are based on the responses submitted in the application by the applicant and the best available information about the proposal without the benefit of testimony provided at the evidentiary hearing.
Findings of Fact Statements as reviewed by the Planning Staff:
1. There is sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships, as shown by the following evidence:
The strict application of the Ordinance requirements would result in practical difficulties and unnecessary hardships, as the restrictions impose a burden on property owners, their business operations, and their employees. Additionally, the limitations increase the risk of theft at the business.
2. There is sufficient evidence that any practical difficulties or unnecessary hardships result from unique circumstances related to the land and are not the result of the actions of the landowner, as shown by the following evidence:
Any practical difficulties or unnecessary hardships arise from unique conditions specific to the property and not from actions taken by the landowner. The lot is a through lot with two street frontages, which presents distinct security challenges. These challenges have required the property owners to invest in additional security measures due to past equipment theft, diverting resources from core business activities.
3. There is sufficient evidence that the Variance is the minimum action that will make possible a reasonable use of land or structures, as shown by the following evidence:
The requested variance is the minimum deviation necessary to ensure the property is used reasonably. The proposed six-foot wall is the minimum height required to provide sufficient security and to protect the business from continued incidents of theft and trespassing.
4. There is sufficient evidence that the Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
The variance aligns with the general purpose and intent of the Ordinance and preserves its spirit. It represents the minimum action necessary to safeguard the property owner’s business and employees by helping to prevent unauthorized access.
5. There is sufficient evidence that in the granting of the Variance, public safety and welfare have been assured, and substantial justice has been done, as shown by the following evidence:
Granting the variance promotes public safety and welfare while ensuring substantial justice. The increased security will help deter crime and theft, providing enhanced protection for both employees and customers of the business.
Budget Impact:
There is no immediate budgetary impact associated with this request.
Options:
1. Approve Findings of Fact as drafted
2. Approve Findings of Fact with specific changes
Recommended Action:
Approve Findings of Fact as drafted
Attachments:
1. Application & Site Plan
2. Findings of Fact