Sec. 7-5-21. Reserved.

Editor's note(s)—Ord. No. 4560, § 1f, adopted February 14, 2017, repealed § 7-5-21, which pertained to neighborhood/developer meetings and derived from Ord. No. 3072, adopted November 25, 2003.

ARTICLE VI. VARIANCES, ADMINISTRATIVE APPEAL AND REASONABLE ACCOMMODATIONS 1

 

Notes

1	Editor's note(s)— Ord. No. 4403, § 1a, adopted Apr. 14, 2015, changed the title of Art. VI from "Variances and Administrative Appeals" to read as set out.

Sec. 7-6-1. Variances.

(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)

Sec. 7-6-2. Appeals of administrative decisions.

(a)   Purpose. Appeals to the board of adjustment from the decisions of the administrative staff of the city are permitted as provided for in this chapter.

(b)   Decisions which may be appealed. Any order, requirement, decision, or determination made by an administrative officer or other boards or commissions charged with enforcing the provisions of this chapter may be appealed to the board of adjustment as set forth herein.

(c)   Persons who may file and appeal. Any person who has standing under N.C.G.S. §160D-1402(c) or the city may appeal a decision to the board of adjustment. The notice of appeal shall state the grounds for appeal.

(d)   Filing of an appeal.

(1)   An application for an appeal shall be filed with the city clerk who will then forward to the planning and development director on a form prescribed by the director and contain such information as required on the application form.

(2)   The application shall be accompanied by a fee as set forth in the City of Asheville's Fees and Charges Manual.

(3)   Any appeal of an administrative decision must be filed no later than 30 days from receipt of written notice of the decision. For purposes of this section, "filed" means received by the city clerk.

(4)   Once an application is accepted as complete by the planning and development director, the application will be scheduled for consideration at a public hearing by the board of adjustment.

(5)   The filing of an appeal of a notice of violation or other enforcement order shall stay all proceedings in furtherance of the contested action unless the planning and development director, chief building inspector, or the official who made the decision, certifies to the board of adjustment that, in his/her opinion, by reason of facts stated in the certification, such a stay would cause imminent peril to life and property, or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the ordinance. In such case, proceedings shall not be stayed except by restraining order which may be granted by the Superior Court of Buncombe County on notice to the administrative official from whom the appeal is taken, with due cause shown. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board of adjustment shall meet to hear the appeal within 15 days after such a request is filed.

Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for permits or permissions to use such property. In these situations the appellant may request and the board may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

(e)   Action by the board of adjustment.

(1)   Upon receiving the application materials, the board of adjustment shall hold a quasi-judicial hearing on the appeal. 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)   Either at the hearing or a subsequent meeting, the board of adjustment shall adopt an order reversing, affirming, or modifying the contested action.

(3)   The board of adjustment shall not reverse or modify the contested action unless it finds that the administrative officer erred in the application or interpretation of the terms of this chapter.

(4)   The board of adjustment shall not reverse or modify the contested action unless there is a concurring majority vote of the board members.

(5)   Nothing herein shall prevent the planning and development director or his/her designee from pursuing an informal resolution of the matter appealed from. In such cases, the planning and development director or his/her designee shall report such resolution to the board of adjustment.

(f)   Effect of reversal or modification. In the event that the board of adjustment reverses or modifies the contested action, all subsequent actions taken by administrative officers with regard to the subject matter shall be in accordance with the reversal or modification granted by the board of adjustment unless an appeal is taken on the board's decision.

(g)   Appeal from board of adjustment. Any such petition to the superior court shall be filed no later than 30 days after a written copy of the decision is provided to the applicant, as provided in N.C.G.S. §160D-1405(d).

(Ord. No. 2369, § 1, 5-27-97; Ord. No. 3306, § 1(c), 11-22-05; Ord. No. 3374, § 1(q), 7-11-06; Ord. No. 3757, §§ 1d, e, 7-14-09; Ord. No. 4274, § 1c, 1-28-14; Ord. No. 4560, § 1g, 2-14-17; Ord. No. 4381, § 1(N)—(Q), 6-8-21)

Sec. 7-6-3. Variances for reasonable accommodations.

(a)   Purpose. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability as provided in N.C.G.S. §160D-705(d). This section provides a procedure for making requests for reasonable accommodations in land use, zoning and building regulations, policies, practices and procedures for the City of Asheville to comply fully with the intent and purpose of federal laws.

Nothing in this section requires persons with disabilities or handicaps, or operators of family care homes or group homes for persons with disabilities or handicaps acting or operating in accordance with applicable zoning, licensing or land use laws or practices, to seek reasonable accommodation under this section.

(b)   Eligible applicants.

(1)   This section is intended to apply to those persons who are defined as disabled or handicapped under federal law. A person recovering from substance abuse is considered a person with a disability or handicap; however, a person who is currently engaging in the illegal use of controlled substances is not.

(2)   A request for a reasonable accommodation may be made by any person with a disability or handicap, his or her legal representative, or a provider of housing for persons with disabilities or handicaps in the city's land use and zoning regulations, policies, or practices when the application of such may act as a barrier to affording such person[s] equal opportunity to use and enjoy a dwelling in accordance with the law.

(c)   Eligible requests.

(1)   A request for a reasonable accommodation may include a modification or exception to the rules, standards and/or practices for the siting, development, and use of housing or housing-related facilities in this Unified Development Ordinance, that would eliminate regulatory barriers and provide a person with a disability or handicap an equal opportunity to a dwelling of his or her choice.

(d)   Applications.

(1)   The City of Asheville's Development Services Department shall provide applicants for a reasonable accommodation with an application form, eliciting the following information:

a.   The applicant's name, address and telephone number;

b.   Name, address, and telephone number of the property owner and the current address for which the request is being made;

c.   The current actual use of the property;

d.   The basis for the claim that the applicant is considered disabled or handicapped under federal law;

e.   The UDO provision, regulation or policy from which reasonable accommodation is being requested;

f.   Explanation of why the reasonable accommodation is necessary to make specific property available for the individual.

(2)   If an individual needs assistance in making the request for reasonable accommodation, the city will provide assistance to ensure that the process is accessible.

(3)   A reasonable accommodation shall not affect an individual's obligations to comply with other applicable regulations not at issue in the requested accommodation.

(4)   Any information which relates to the applicant's disability or handicap and is identified by the applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection.

(5)   An application for a reasonable accommodation under this section shall be submitted to the city clerk who will forward copies of the request to the director of development services. No filing fee shall be required for such application.

(e)   Application review.

(1)   Review authority. A request for a reasonable accommodation shall be reviewed, and a determination shall be made, by the board of adjustment.

(2)   Action and procedures of the board of adjustment.

a.   Upon receiving a complete application, the board of adjustment shall hold a quasi-judicial hearing on the proposed reasonable accommodation within 60 days, unless this requirement is waived by the applicant. 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.

b.   In considering the application, the board of adjustment shall review the application materials, the standards set forth in this section, and all testimony and evidence received by the board of adjustment at the quasi-judicial hearing.

c.   After conducting the hearing, the board of adjustment may:

            i.   Grant the application. The concurring vote of four-fifths of the board of adjustment shall be necessary to grant a reasonable accommodation; or

            ii.   Deny the application. Any approval or denial of the request shall be accompanied by written findings of fact and conclusions of law determining that the request for reasonable accommodation meets or does not meet each of the standards set forth in subsection (e)(3) below. The written decision shall be signed by the chair or other duly authorized member of the board. The decision is effective upon filing the written decision with the secretary to the board.

(3)   Standard of review. The board of adjustment shall grant an exception or modification to any provision of this section as a reasonable accommodation under federal law if the board finds, based on the competent, material and substantial evidence, that the proposed accommodation:

a.   Will be used by an individual or individuals with a disability or handicap protected under federal law;

b.   Is "reasonable." An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes and effects of existing zoning regulations, and if it will not impose significant financial and administrative burdens upon the city and/or constitute a substantial or fundamental alteration of the city's ordinance provisions; and

c.   Is "necessary." An accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to enjoy and use housing in residential districts in the city.

(4)   Decision. The board of adjustment shall issue a written decision on a request for reasonable accommodation within 60 days of the date of the quasi-judicial hearing.

(5)   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 in accordance with the procedures and requirements set forth in N.C.G.S. § 160D-1402.

(Ord. No. 4403, § 1c, 4-14-15; Ord. No. 4381, § 1(R)—(W), 6-8-21)

ARTICLE VII. TEXT AMENDMENTS AND MAP AMENDMENTS

Sec. 7-7-1. General.

The Asheville City Council may amend, supplement, modify, or repeal the regulations set forth in this chapter or amend the zoning maps. Such amendments shall be evaluated for compliance with the city's comprehensive plan and other applicable adopted plans, and may require a comprehensive plan amendment pursuant to section 7-4-2 of this chapter.

(Ord. No. 2369, § 1, 5-27-97; Ord. No. 3306, § 1(d), 11-22-05)