Pender County board denies height variance for rebuilt waterfront home

The Pender County Board of Adjustments on a split vote denied a variance request that would have allowed a homeowner to rebuild a waterfront house to its prior height without meeting an additional two‑foot freeboard increment adopted with recent flood map updates.

Planner Sean Olds told the board the property at 108 Key Largo Drive was in a V‑zone and that new federal maps raised the base flood elevation from 10 feet in 2021 to 14 feet in 2026. Under Pender County’s Unified Development Ordinance and its 2‑foot freeboard policy, that change increases the regulatory flood protection elevation (RFPE) and affects the additional building height allowed under UDO §4.142. Olds said the applicant seeks relief from the extra two feet of freeboard required to reach the same building height previously permitted.

The variance petition was presented by Mark Davis of JM Davis Custom Homes, who said shrinking roof pitch or interior ceiling heights to avoid the variance would make the home unmarketable and financially ruinous for the 75‑year‑old owner. “We are willing to do anything for safety,” Davis said, adding the builder would add an exterior staircase and other safety features. Homeowner Tom Birney testified he lost the nearly new house in a nighttime fire and said rebuilding the same house is central to his financial recovery: “Everything that I owned, everything is gone.”

Lee Duncan, Pender County’s floodplain administrator, reviewed the elevation documents and said the prior house had been built above the then‑required elevation and that the applicant’s proposal would meet FEMA and county flood requirements. Duncan said a final elevation certificate in the record stamps the peak at roughly 39.7 feet above slab and that the property had about nine‑tenths of a foot of vertical “wiggle room” in the measurements staff reviewed.

Board members pressed staff on legal standards and the required findings for a variance, including whether the hardship was peculiar to the property and not the result of the owner’s actions. A board member summarized concerns that, despite sympathy for the owner, the applicant had not presented the substantial evidence needed to meet the strict variance burden of proof. “There was no substantial evidence presented that would have granted the variance in my humble opinion,” the board member said.

A motion to approve the variance was made and seconded. After the vote, staff clarified that, under state law and county practice for this type of variance, approval must be unanimous; because one member voted against the motion the board’s action resulted in a denial. Staff told the board a written order explaining the decision will be prepared and is appealable to superior court.

The board also noted it has no authority to vary FEMA flood standards and that any change to local height allowances would be a decision for the Board of County Commissioners. The hearing record shows the county adopted updated flood maps and a revised flood damage prevention ordinance on Jan. 17, 2025.

The board discussed upcoming meeting dates and adjourned. The written board order memorializing the decision will be added to the record and provide the formal basis for appeal or further action.