Board denies variance for pool fence at 2011 Fville Avenue

The Board of Adjustment on March 3 denied a variance request that would have allowed a pool fence at 2011 Fville Avenue to exceed the town's 4-foot front-yard height limit.

In a staff presentation, Miss Anderson said the town measures fence height from the slab grade to the top rail and that town code limits front-yard fences to 48 inches. She told the board staff had approved a 4-foot fence in 2019 but found, after a 2024 application and a May site visit, that the currently installed fence exceeded the 48-inch limit. Staff noted the 2018 North Carolina State Building Code requires at least a 48-inch pool barrier and limits openings beneath barriers.

Applicant attorney Lad Gasparic told the board the owners purchased the property in 2021 and replaced a dilapidated fence. He said the contractor installed what he believed was a 48-inch fence but that the concrete floor flange and post-on-plate mounting raised the top-of-rail to about 50 inches measured from the slab. "We furnished and installed a 48-in tall fence," Gasparic said, adding that the plate and raised foundation produced the extra height. He said the overage was an "honest mistake" and emphasized safety concerns, noting national pool guidance often recommends a 54-inch barrier.

Fence contractor Kyle Sears testified the fence was installed as a standard 48-inch product from rail to rail but that the installation on the elevated deck and the flange prevented the bottom rail from sitting lower. Sears said the contractor did not complete the town's permit process before installing the fence; he said he had an email approval from a county inspector but was still waiting on Carolina Beach approval.

Board members debated the four statutory findings required for a variance. Several members concluded the hardship resulted from the applicant's actions or from a construction choice and therefore did not meet the criteria that the hardship not result from the owner's actions. One member said the requested variance's modest size did not undermine safety, but others said the lack of permitting and the availability of alternative constructions weighed against approval. A motion to deny the variance was seconded and passed by the board.

The board asked the applicant to clarify measurement discrepancies during a short recess; the applicant maintained the overage was approximately 2 inches but the board recorded the denial based on the previously stated findings.

The denial means the existing installed fencing at 2011 Fville Avenue remains nonconforming under the town's fence-height rule unless the applicant pursues further remedies permitted by code.