(a) Purpose. The variance process administered by the board of adjustment is a quasi-judicial process intended to provide limited relief from the requirements of this chapter in those cases where strict application of a particular requirement will create an unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this chapter. It is not intended that variances be granted merely to remove inconveniences or financial burdens that the requirements of this chapter may impose on property owners in general or to increase the profitability of a proposed development. Rather, it is intended to provide relief where the requirements of this chapter render the land difficult to use because of some unique physical attribute of the property itself or some other factor unique to the property for which the variance is requested.
(b) Provisions which may not be varied by the board of adjustment:
(1) Other than those exceptions explicitly noted, in no event shall the board of adjustment grant a variance to any special requirement set out in article XVI for a use by right subject to special requirements, or grant a variance with respect to any special use permit or conditional zoning district ordinance adopted pursuant to this chapter.
(2) In no event shall the board of adjustment grant a variance which would modify, alter, change, or suspend the special requirements set forth in article XVI of this chapter, for a use by right, subject to special requirements, or a special use.
(3) In no event shall the board of adjustment grant a variance to the flood protection provisions within the designated floodway district which would result in any increase in the flood levels during the regulatory flood discharge.
(4) In no event shall the board of adjustment grant a variance which would permit the creation of a non- conforming lot except that the board may grant a variance permitting a reduction in lot area and dimensional standards, for an individual lot located in residential districts, provided that the variance does not permit a reduction of greater than ten percent in the required lot area and dimensional standards. Provided further, applications for such variance for additional lot(s) under common ownership or located within the same development shall not be submitted within three years of submittal of the previous application, regardless of the decision of the board on the previous application.
(5) In no event shall the board of adjustment grant a variance from the design guidelines established for local historic districts and historic landmarks.
(6) In no event shall the board of adjustment grant a variance which would conflict with the North Carolina State Building Code, the Asheville Fire Prevention Code, or any other state code unless otherwise authorized by laws and regulations.
(7) Reserved.
(8) In no event shall the board of adjustment grant a variance from the landscape and buffering standards set forth in section 7-11-1 of this chapter.
(c) Applications.
(1) An application for a variance may be filed only by the owner of the land affected by the variance or an agent specifically authorized in writing by the owner to file such application.
(2) Before filing the application, the applicant is strongly encouraged to meet with the planning and development director or the engineering director if proceeding under sections 7-5-12, 7-12-1 or 7-12-2 of this chapter to discuss the proposed variance and to become more familiar with the applicable requirements and approval procedures of the city.
(3) An application for a variance shall be filed with the city clerk who will then forward to the planning and development director or the engineering director, if proceeding under section 7-5-12, 7-12-1 or 7-12-2, on a form prescribed by the director, and containing such information and plans as required on the application form. The notice of appeal shall state the grounds for the appeal.
(4) The application shall be accompanied by a fee as set forth in the City of Asheville's Fees and Charges Manual.
(5) Once an application is accepted as complete by the clerk, the planning and development director or the engineering director, if proceeding under the section 7-5-12, 7-12-1 or 7-12-2, the application will be scheduled for consideration at a public hearing by the board of adjustment; provided however, all appeals and requests for variances under section 7-5-12 and 7-12-1 of this chapter shall initially be heard by the specifications review committee.
(d) Action by the board of adjustment.
(1) Upon receiving the application materials, the board of adjustment shall hold a quasi-judicial hearing on a proposed variance. Notice of the hearing shall be provided in accordance with the provisions of section 7-5-20 of this chapter. The hearing shall be conducted in accordance with the rules of procedure of the board of adjustment and in accordance with the North Carolina General Statutes.
(2) In considering the application, the board of adjustment shall review the application materials, the staff recommendation, the general purpose and standards set forth in this article for the granting of variances, and all testimony and evidence received by the board of adjustment at the public hearing.
(3) After conducting the quasi-judicial hearing, the board of adjustment may:
a. Deny the application;
b. Conduct an additional hearing on the application; or
c. Grant the application. The concurring vote of four-fifths of the board of adjustment shall be necessary to grant a variance.
Any approval or denial of the request shall be accompanied by written findings that the variance meets or does not meet each of the standards set forth in subsection 7-6-1(e) below: except the standards for flood protection regulation variances are set forth in subsection 7-6-1(f). The written decision shall be signed by the chair or other duly authorized member of the board. A quasi-judicial decision is effective upon filing the written decision with the secretary to the board.
(4) Appropriate conditions, which must be reasonably related to the condition or circumstance that gives rise to the need for a variance, may be imposed on any approval issued by the board of adjustment.
(e) Standard of review. When unnecessary hardships would result from carrying out the strict letter of this ordinance, the board of adjustment shall grant a variance upon a showing of all the following:
(1) Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
(3) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
(4) The variance is consistent with the spirit, purpose and intent of the ordinance such that public safety is secured and substantial justice is achieved.
No change in permitted uses may be authorized by the variance. Appropriate conditions may be imposed on any variance provided that the conditions are reasonably related to the variance.
(f) Standard of review—flood regulations variances. A variance from the standards set forth in section 7-12-1 of this chapter for flood protection may be granted permitting the erection of a structure with a lowest floor elevation, including basement, lower than the regulatory flood datum if all of the following are met:
(1) The property on which the structure is to be erected is an isolated lot of one-half acre or less, contiguous to and surrounded by existing structures constructed below such required first floor elevation;
(2) Good and sufficient cause exists for the granting of the variance;
(3) Failure to grant the variance would result in exceptional hardship to the applicant;
(4) The issuance of the variance would not result in increased flood heights, additional threats to public safety, or extraordinary public expense;
(5) The variance is the minimum necessary to afford relief; and
(6) The variance would not have the effect of nullifying the intent and purposes of this chapter.
(g) Standard of review—sign variances. See section 7-13-9 of this chapter.
(h) Effect of approval or denial.
(1) After the board of adjustment approves a variance, the applicant shall follow all appropriate procedures set forth in article V of this chapter for the receipt of permits, certificates, and other approvals necessary in order to proceed with development.
(2) An application for a rehearing may be made in accordance with the board of adjustment's rules of procedure.
(i) Appeals. Any appeal from the decision of the board of adjustment may be made by an aggrieved party and shall be made to the Superior Court of Buncombe County in the nature of certiorari. Any such petition to the Superior Court shall be filed no later than 30 days, as provided in N.C.G.S. §160D-1405, after a written copy of the decision of the board of adjustment is provided to the applicant.
(Ord. No. 2369, § 1, 5-27-97; Ord. No. 2453, § 1, 2-24-98; Ord. No. 2637, § 1(b), 11-9-99; Ord. No. 2902, §§ 1(h)—1(j), 3-12-02; Ord. No. 2912, § 1(d), 4-9-02; Ord. No. 3306, § 1(b), 11-22-05; Ord. No. 3369, § 1(c), 6-27-06; Ord. No. 3374, § 1(p), 7-11-06; Ord. No. 3757, § 1c, 7-14-09; Ord. No. 3793, § 1g, 9-22-09; Ord. No. 3943, § 1a, 1-25-11; Ord. No. 4274, § 1b, 1-28-14; Ord. No. 4381, § 1(H)—(M), 6-8-21; Ord. No. 5057, § 1g, 1-23-24)