TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Demetrios Moutos - Planner I
DATE: March 11, 2025
RE:
Title
A25-05: A variance request to address height and fence/wall limitations 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 property located at 5224 Bragg Boulevard (0418392966000) in Cumberland County, NC. The request seeks relief from the height and fence/wall limitations specified in Table 30-5.D.4 of the Unified Development Ordinance to allow the construction of a taller rear wall.
Per Section 30.2.C.14, variances provide relief from dimensional standards when exceptional circumstances beyond the landowner’s control create unique hardship under strict application of the Ordinance. However, variances do not alter permitted uses or conditions of approval and are intended to be granted only in limited 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, 5224 Bragg Boulevard, is classified as a through lot, meaning it has street frontage on both the front and rear lot lines. Per Table 30-5.D.4 of the Fayetteville Unified Development Ordinance (UDO), through lots are considered to have two front yards, which limits the maximum allowable fence or wall height in both yards to four feet.
The applicant has requested a variance to construct a six-foot wall in the rear yard. This request seeks relief from the height restrictions for fences and walls in front yards as defined in the UDO.
Variance requests must demonstrate that strict application of the ordinance results in practical difficulties or unnecessary hardships due to unique circumstances related to the property. The applicant has identified the following site-specific conditions:
Through Lot Classification: The property’s designation as a through lot imposes restrictions that differ from typical commercial lots, where fences up to six feet are permitted in rear yards.
Security Concerns: The applicant cites prior instances of trespassing and theft, as well as the secluded nature of the rear area, as a justification for a taller wall.
Employee Safety: The applicant has indicated that employees park near the rear of the property and may be at risk due to low visibility and access concerns associated with the current fencing conditions.
The applicant states that these factors create practical difficulties in securing the property and ensuring safety, which they argue are not the result of owner actions but rather the unique characteristics of the lot.
Variance requests must also demonstrate that the requested action is the minimum necessary to allow for reasonable use of the property while remaining consistent with the general intent of the ordinance.
The applicant has requested a six-foot wall, which is consistent with the height permitted for rear yard fences in commercial zoning districts.
The property is zoned CC (Community Commercial), where security measures such as fencing and walls are commonly used.
The applicant states that the proposed wall would not impact public safety or visibility and would align with the overall character of the surrounding commercial area.
Considerations regarding public safety and compatibility with surrounding properties include:
Security and Crime Prevention: The applicant asserts that the variance would improve security and deter unauthorized access.
Aesthetic and Structural Consistency: The applicant indicates that the proposed wall would be designed to match the existing building character.
Neighborhood Context: The surrounding area includes vacant lots and a commercial use (lawnmower repair shop). The applicant states that the wall would not create visual obstructions or negatively impact adjacent properties.
The variance request presents site-specific considerations related to the property’s through-lot designation, security concerns, and commercial zoning context. The applicant has provided information regarding potential practical difficulties, minimum necessary relief, and the intent of the proposed wall.
As an evidentiary matter, the decision on this variance request must be based on the presented facts, supporting documentation, and whether the case meets the criteria established for a variance approval under the UDO.
Insufficient Justification for a Variance:
The following are not considered valid grounds for a Variance:
The presence of other nonconforming or conforming land uses or structures in the same or different districts;
A request for a use that is explicitly or implicitly prohibited in the district; or
Economic hardship or the potential for increased profitability through a Variance.
Findings of Fact (Based on Applicant’s Responses):
The findings are based on the applicant’s responses to the submitted application and the most reliable information regarding the proposal before any testimony presented 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:
A six-foot wall, rather than a four-foot wall, would enhance security and provide peace of mind. In the past, the existing broken fence failed to prevent trespassing and theft, resulting in the loss of wood and concrete blocks from the property. The secluded nature of the rear area increases the risk of unauthorized access and potential criminal activity. The proposed wall is intended to help protect our family, employees, and assets.
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:
The property has two front yards.
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:
I want my employees to feel safe when leaving after their final shift at night, especially since their parking area will be located in front of the wall.
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 rear wall will be designed to complement the character of the building.
5. There is sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
It enhances the property’s aesthetics while ensuring the safety of all visitors.
Budget Impact:
There is no immediate budgetary impact associated with this request.
Options:
The board has the authority to approve or deny the request based on the five required findings of fact. Members must assess the evidence and determine whether the applicant has sufficiently demonstrated practical difficulties or unnecessary hardships based on the land’s unique characteristics.
If a member believes that the evident presented is substantial, competent, and sufficient to meet the required findings of fact, then the member may make a motion to approve the variance. The members must state all five findings of fact and the evidence presented to satisfy each finding.
If the members cannot find specific supporting facts under all five findings of fact, they must consider a motion of denial. The motion should indicate which of the five findings of fact cannot be met.
The board can also place reasonable conditions on the variance approval.
If a member wishes to make a motion to approve the variance, they should make a brief statement recapping the evidence showing each of the five findings of fact. Any discussion by the Board following a motion may include a recap of the evidence supporting each of the five factual findings.
Possible Motions and Factual Findings:
Motion to approve the variance increasing the maximum height of a fence/wall in the front yard from four feet to six feet.
Findings of Fact Required to Approve this Request:
1. Strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
______________________________________________________________________
2. 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:
______________________________________________________________________
3. The Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
_____________________________________________________________________
4. The Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
______________________________________________________________________
5. In the granting of the Variance, the public safety and welfare have been assured and substantial justice has been done as shown by the following evidence:
______________________________________________________________________
Motion to approve the variance(s) as requested but with added conditions
Findings of Fact Required to Approve this Request with added conditions:
1. Strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
___________________________________________________________________
2. 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:
___________________________________________________________________
3. The Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
___________________________________________________________________
4. The Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
___________________________________________________________________
5. In the granting of the Variance, the public safety and welfare have been assured and substantial justice has been done as shown by the following evidence:
___________________________________________________________________
Motion to deny the variance as requested.
Findings of Fact Statements Required to Deny this Request:
1. There is not sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
________________________________________________________________
2. There is not 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:
_______________________________________________________________
3. There is not 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:
_______________________________________________________________
4. There is not 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:
_______________________________________________________________
5. There is not sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
_______________________________________________________________
Recommended Action:
N/A
Attachments:
1. Application
2. Aerial Notification Map
3. Zoning Map
4. Land Use Map
5. Subject Property Photos
6. Surrounding Property Photos
7. Site Plan