(A) Permits distinguished. Both variance permits from subdivision standards and variance permits from zoning provisions are established under this ZDO. Variance permits from subdivision standards are intended to address requests to deviate from the standards in Chapter 167: Subdivision Standards, as well as variance requests from the lot dimension requirements in Chapter 165: Dimensional Standards as part of the subdivision establishment process, § 162.03-07. The variance permit process from zoning provisions is intended to address all other variance application requests.
(B) Purpose. The purpose of a variance permit is to allow certain deviations from the standards of this ZDO (such as height, yard setback, lot coverage, parking, landscaping, and signage standards), when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the dimensional standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
(C) Authority.
(1) The BZA is authorized to review and decide a variance permit from the zoning standards in accordance with this section.
(2) The Planning Commission is authorized to review and decide on a variance permit from the subdivision standards in accordance with this section.
(D) Procedure for zoning variance permits.
(1) Application submission, review, notification and scheduling hearing. The procedures and requirements for submission and review of an application are established in § 162.02, Common Review Procedures.
(2) Review and action by Board of Zoning Appeals. After preparation of a staff report, public notification, and the scheduling of a public hearing, the BZA shall conduct a public hearing on the application in accordance with § 162.02-17, Public Hearing Procedures. At the public hearing, the BZA shall consider the application, the relevant support materials, the staff report, and the testimony given at the public hearing. After the close of the public hearing, the BZA shall approve, approve with conditions, or deny the application based on the standards in § 162.03-04(F), Variance Permit Standards.
(E) Procedure for subdivision variance permits.
(1) Application submission, review, notification and scheduling hearing. The procedures and requirements for submission and review of an application are established in § 162.02, Common Review Procedures.
(2) Review and action by Planning Commission. After preparation of a staff report, public notification, and the scheduling of a public hearing, the Planning Commission shall conduct a public hearing on the application in accordance with § 162.02-17, Public Hearing Procedures. At the public hearing, the Planning Commission shall consider the application, the relevant support materials, the staff report, and the testimony given at the public hearing. After the close of the public hearing, the Planning Commission shall approve, approve with conditions, or deny the application based on the standards in § 162.03-07(F), Variance Permit Standards.
(F) Variance permit standards.
(1) Application. The variance permit standards set forth in this ZDO are applicable to both zoning variance permits and subdivision variance permits.
(2) Findings. A variance permit shall be approved only upon a finding, made in writing that the applicant demonstrates all of the following standards are met:
(a) There are extraordinary and exceptional conditions (such as topographic conditions, narrowness, shallowness, or the shape of property) pertaining to the particular piece of land for which the variance permit is sought, that do not generally apply to other land or structures in the vicinity.
(b) The special circumstances are not the result of the actions of the applicant.
(c) Because of the conditions in § 162.03-04(F)(2)(a) above, the application of this ZDO to the land would effectively prohibit or unreasonably restrict the utilization of the land and result in unnecessary and undue hardship.
(d) The granting of the variance permit is the minimum action that will make possible the reasonable use of the land or structure which is not contrary to the public interest, and which would carry out the spirit of this ZDO.
(e) The authorization of the variance permit will not result in substantial detriment to adjacent land, and the character of the zoning district in which the land subject to the application is located.
(f) The granting of the variance permit will be generally consistent with the purposes and intent of this ZDO.
(3) Not grounds for variance permit. The following do not constitute grounds for a variance permit:
(a) The nonconforming use of neighboring lands, structures, or buildings in the same zoning district that applies to the land for which the variance permit is sought.
(b) The fact that land may be utilized more profitably should a variance permit be granted.
(c) No variance permit shall be granted to:
1. Allow a use not permitted by right or special exception in the district in which the land subject to the variance permit is located.
2. Extend physically a nonconforming use of land.
3. Change the zoning district boundaries on the official zoning map.
4. Establish, enlarge, or alter any use, structure, or characteristic of use that arises from or is necessitated by the approval of a special exception permit.
(G) Conditions of approval. In approving a variance permit, the BZA or Planning Commission may impose appropriate conditions on the permit approval in accordance with § 162.02-12, Conditions of Approval.
(H) Appeal. A person having a substantial interest affected by a decision of the BZA or the Planning Commission on a variance permit may appeal from the decision of the BZA or the Planning Commission to the Circuit Court in and for Charleston County by filing with the Clerk of Court a petition setting forth plainly, fully, and distinctly why the decision is contrary to law. The appeal shall be filed within 30 days after the decision of the the Planning Commission is made or within 30 days after the decision of the BZA is mailed. For the purposes of this subsection, person includes persons jointly or severally aggrieved by the decision of the BZA or the Planning Commission.
(I) Recordation. The BZA or the Planning Commission may require the applicant to record the variance permit with the Register of Mesne Conveyance. The variance permit shall be binding upon the landowners, their successors, and assigns.
(J) Subsequent development. Development authorized by the variance permit shall not be carried out until the applicant has secured all other permits required by this ZDO or any other applicable provisions of the city. A variance permit does not ensure that the development approved as a variance permit shall receive subsequent approval for other applications for permit approval unless the relevant and applicable portions of this ZDO or any other applicable provisions are met.
(K) Effect. Issuance of a variance permit shall authorize only the particular variance that is approved in the permit. A variance permit, including any conditions, shall run with the land and not be affected by a change in ownership. Land subject to an approved variance permit shall not be exempted from other relevant standards in this ZDO which are unrelated to the standard being varied.
(L) Expiration.
(1) General. The BZA or Planning Commission may prescribe a time limit within which development activity shall begin or be completed on the variance permit, or both. Failure to begin or complete such development activity within the time limit specified shall void the variance permit. Unless specified otherwise by the BZA, a variance permit shall automatically expire:
(a) One year from the date of its issuance if:
1. The development authorized by the permit has not commenced, and no substantial construction, alteration, demolition, excavation, or other similar work required by the permit is completed; or
2. Less than 10% of the total amount of development approved as part of the permit is completed, when construction, alteration, demolition, excavation, or other similar work is required.
(b) If the development approved by the variance permit is discontinued and not resumed for a period of one year.
(2) Extension. Upon written application submitted at least 30 days prior to the expiration of the permit period by the applicant, and upon a showing of good cause, the BZA or Planning Commission (as appropriate) may grant one extension not to exceed six months. Failure to submit an application for an extension within the time limits established by this section shall result in the expiration of the variance permit.
(M) Amendment. A variance permit may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.
(Ord. 05-10, passed 3-23-10; Am. Ord. 014-24, passed 6-11-24)