(A) Except where General UTBs are modified pursuant to Section 14.6.10 above, General UTBs shall not be modified or varied unless the applicant is granted a variance pursuant to this Section 14.6.11.
(B) Requirements for Variances
Persons who wish to undertake prohibited uses may pursue a variance. Cary may grant minor variances. For major variances, Cary shall prepare preliminary findings and submit them to the Stormwater Division, or its successor for approval by the Environmental Management Commission. The variance request procedure shall be as follows:
(1) For any variance request, Cary shall make a finding of fact as to whether there are practical difficulties or unnecessary hardships that prevent compliance with the UTB requirements. A finding of practical difficulties or unnecessary hardships shall require that the following conditions are met:
(a) If the applicant complies with the provisions of this Ordinance, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, Cary shall consider whether the variance is the minimum possible deviation from the terms of this Section 14.6 that shall make reasonable use of the property possible;
(b) The hardship results from application of this Section 14.6 to the property rather than from other factors such as deed restrictions or other hardship;
(c) The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, such that compliance with provisions of this Section 14.6 would not allow reasonable use of the property;
(d) The applicant did not cause the hardship by knowingly or unknowingly violating this Section 14.6;
(e) The applicant did not purchase the property after July 14, 2011 (the effective date of this Ordinance), and then request a variance; and
(f) The hardship is rare or unique to the applicant's property.
(g) The variance is in harmony with the general purpose and intent of the State's riparian buffer protection requirements and this Ordinance and preserves its spirit; and
(h) In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.
(C) Minor Variances
A minor variance request pertains to activities that will impact Zone Two of the UTB. Minor variance requests shall be reviewed and approved based on the criteria in Section 14.6.11(B). Cary may attach conditions to the variance approval that support the purpose, spirit, and intent of the UTB program. Request for appeals to decisions made by Cary shall be made in writing to the Director of Water Quality, 401 Oversight Express Permitting Unit, or its successor. The Directors decision is subject to review as provided in G.S. Chapter 150B, Articles 3 and 4.
(D) Major Variances
A major variance request pertains to activities that will impact any portion of Zone One or any portion of both Zones One and Two of UTB. If Cary has determined that a major variance request meets the requirements in Section 14.6.11(B), then it shall prepare a preliminary finding and submit it to the NC Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor, for approval. Within ninety (90) days after receipt by Cary, the Commission shall review preliminary findings on major variance requests and take one (1) of the following actions: approve, approve with conditions and stipulations, or deny the request. Appeals from a Commission decision on a major variance request are made on judicial review to Superior Court.
(E) Any use allowed by a variance which requires mitigation as a condition of variance approval shall not be undertaken until a Mitigation Approval is issued pursuant to Section 14.6.12.