A grant of relief from the requirements of this chapter may be requested, following the provisions of this section, where unusual circumstances specific to the property exist, and where literal enforcement would result in unnecessary and undue hardship; provided, however, that the need for the variance was not caused by the applicant or property owner. This section does not provide for use variances or enlargement of existing nonconformities beyond what this chapter provides for. Notice of variance requests shall follow § 153.301(A)(1).
(A) Zoning variance procedures.
(1) Zoning regulation variances may be granted in such individual case of unnecessary hardships only upon findings by the Board of Adjustment after a public hearing that the following conditions exist. Additionally, the existence of a nonconforming use on neighboring land, buildings, or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variances. Individual variances may be made subject to conditions, as imposed by the Board of Adjustment.
(2) No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this division (A).
(3) As per S.L. 2013-126, when unnecessary hardships would result from carrying out the strict letter of this chapter, the Board of Adjustment shall vary any of the provisions of the chapter upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the chapter. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property;
(b) 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;
(c) 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; and
(d) The requested variance is consistent with the spirit, purpose, and intent of the chapter, such that public safety is secured, and substantial justice is achieved.
(B) Subdivision variance procedures. The Planning Board may vary from the design standards and improvements required by this chapter, after finding that the following conditions exist; however, no variance shall be granted which conflicts with any other local, state, or federal statutes, ordinances, or regulations and the subdivider shall submit a written request and justification for any such variance and the Planning Board may attach to the granting of such a variance any conditions necessary to ensure that the purpose and intent of this chapter is not compromised:
(1) There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography that are not applicable to other lands or structures;
(2) Granting the variance requested will not confer upon the subdivider(s) any special privileges that are denied to others;
(3) A literal interpretation of the provisions of this chapter would deprive the subdivider(s) of rights commonly enjoyed by others;
(4) The requested variance will be in harmony with the purpose and intent of this chapter and will not be injurious to the neighborhood or to the general welfare;
(5) The special circumstances are not the result of the actions of the subdivider(s);
(6) The variance requested is the minimum needed;
(7) The burden of producing substantial evidence to support the required findings by the Planning Board is clearly upon the applicant(s). The Planning Board shall deny any request for a variance that is not directly supported by substantial and credible evidence; and
(8) Land uses on adjoining property may be considered by the Planning Board during its deliberation. However, ownership of any adjoining property by direct lineal descendants or direct lineal ascendants of the applicant(s) or subdivider(s) shall not be considered by the Planning Board.
(C) Flood damage prevention variance procedures. The following shall regulate application for variances from the flood damage prevention regulations of this chapter.
(1) Variances may be issued when:
(a) The repair of rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure;
(b) Functionally dependent facilities if determined to meet the definition as stated in § 153.024; or
(c) Any other type of development, provided it meets the requirements stated in this section.
(2) In passing of variances, the Appeal Board shall consider all technical evaluations, all standards specified in other parts of this section, and:
(a) The danger that materials may be swept onto other lands to the injury of others;
(b) The danger to life and property due to flooding or erosion damage;
(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(d) The importance of the services provided by the proposed facility to the community;
(e) The necessity to the facility of a waterfront location as defined under § 153.024 as a functionally dependant facility, where applicable;
(f) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
(g) The compatibility of the proposed use with existing and anticipated development;
(h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;
(i) The safety access to the property in times of flood for ordinary and emergency vehicles;
(j) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
(k) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets, and bridges.
(3) A written report addressing each of the above factors shall be submitted with the application for a variance, along with all other variance application requirements of this chapter.
(4) Upon consideration of the factors listed above and purposes of this section, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this section.
(5) Variances shall not be issued within any designation floodway or non-encroachment area if any increase in flood levels during the base flood discharge would result.
(6) Conditions for variances.
(a) Variances may not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.
(b) Variances shall only be issued upon determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(c) Variances shall only be issued upon:
1. A showing of good and sufficient cause;
2. A determination that failure to grant the variance would result in exceptional hardship; and
3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
(d) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and a written statement that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced level elevation. Such notification shall be maintained with a record of all variance actions.
(e) Variances shall only be issued prior to development permit approval.
(f) The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the state upon request.
(7) A variance may be issued for solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in special flood hazard areas provided that all of the following conditions are met:
(a) The use serves a critical need in the community;
(b) No feasible location exists for the use outside the special flood hazard area;
(c) The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
(d) The use complies with all other applicable federal, state and local laws; and
(e) The county has notified the Secretary of the state’s Department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
(D) Water supply watershed variance procedures.
(1) Applications for a variance shall be made on the proper application, obtainable from the Watershed Administrator and shall include the following information:
(a) A site plan, drawn to a scale of at least one inch to 40 feet, indicating:
1. The property lines of the parcel upon which the use is proposed;
2. Any existing or proposed structures;
3. Parking areas and other built-upon areas;
4. Surface water drainage;
5. North point;
6. Name and address of person who prepared the plan;
7. Date of the original drawing; and
8. An accurate record of any later revisions.
(b) A complete and detailed description of the proposed variance together with any other pertinent information which the applicant(s) feels would be helpful to the Watershed Review Board in considering the application and
(c) The Watershed Administrator shall notify in writing each local government having jurisdiction in the watershed and such other entities using the water supply for consumption. Such notice shall include a description of the variance being requested. Local governments receiving notice of the variance request may submit comments to the Watershed Administrator prior to a decision by the Watershed Review Board. Such comments shall become a part of the record of proceedings of the Watershed Review Board.
(2) Before the Watershed Review Board may grant a variance, it shall make the following three findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
(a) There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the chapter. In order to determine that there are practical difficulties or unnecessary hardships, the Board shall find that the five following conditions exist:
1. If he or she complies with the provisions of the chapter, the applicant can secure no reasonable return from, nor make reasonable use of his or her property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the Board in granting a variance. Moreover, the Board shall consider whether the variance is the minimum possible deviation from the terms of the chapter that will make possible the reasonable use of his or her property;
2. The hardship results from the application of the chapter to the property rather than from other factors such as deed restrictions or other hardships;
3. The hardship is due to the physical nature of the applicant’s property, such as its size, shape, or topography, which is different from that of neighboring property;
4. The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates the chapter, or who purchases the property after January 1, 1994, and then comes to the Board for relief; and
5. The hardship is peculiar to the applicant’s property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice.
(b) The variance is in harmony with the general purpose and intent of the chapter and preserves its spirit; and
(c) In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The Board shall not grant a variance if it finds that doing so would in respect impair the public health, safety, or general welfare.
(3) In granting the variance the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purpose of this chapter. If a variance for the construction, alteration or use of property is granted, such construction, alteration, or use shall be in accordance with the approved site plan.
(4) The Watershed Review Board shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
(5) A variance issued in accordance with this section shall be considered a watershed protection permit and shall expire if a building permit or watershed occupancy permit for such use is not obtained by the applicant within six months from the date of the decision.
(6) If the application calls for the granting of a major variance, and if the Watershed Review Board decides in favor of granting the variance, the Board shall prepare a preliminary record of the hearing. The preliminary record of the hearing shall include:
(a) The variance application;
(b) The hearing notices;
(c) The evidence presented;
(d) Motions, offers of proof, objections to evidence, and rulings on them;
(e) Proposed findings and exceptions; and
(f) The proposed decision, including all conditions proposed to be added to the permit.
(7) The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
(a) 1. If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
a. The property owner(s) can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted; and
b. The variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations.
2. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. If the Commission approves the variance as proposed, the Board shall prepare a final decision granting the proposed variance. If the Commission approves the variance with conditions and stipulations, the Board shall prepare a final decision, including such conditions and stipulations, granting the proposed variance.
(b) 1. If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
a. The property owner(s) can secure a reasonable return from or make a practical use of the property without the variance; or
b. The variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed.
2. a. The Commission shall prepare a Commission decision and send it to the Watershed Review Board.
b. The Board shall prepare a final decision denying the variance as proposed.
(E) Airport height control variance procedures.
(1) The application for variance shall be accompanied by a determination from the Federal Aviation Administration (FAA) as to the effect of the proposal on the operation of air navigation facilities and the safe, efficient use of navigable airspace. Such variances shall be allowed where it is duly found that a literal application or enforcement of the regulations will result in unnecessary hardship, and relief granted will not be contrary to the public interest, will not create a hazard to air navigation, will do substantial justice, and will be in accordance with the spirit of this section. Additionally, no application for variance to the requirements of this chapter may be considered by the Board of Adjustment unless a copy of the application has been furnished to the Harnett County Airport through the Planning Department and Airport Administrator, or other designated county department head, for advice as to the aeronautical effects of the variance.
(2) Variances shall be allowed where it is duly found that:
(a) A literal application or enforcement of the regulations will result in unnecessary hardship;
(b) Relief granted, will not be contrary to the public interest,
(c) Relief granted will not create a hazard to air navigation;
(d) Relief granted will do substantial justice; and
(e) Relief granted will be in accordance with the spirit of the chapter.
(3) (a) Additionally, no application for variance to the requirements of this chapter may be considered by the Board of Adjustment unless a copy of the application has been furnished to the Airport Administrator for advice as to the aeronautical effects of the variance.
(b) If, however, failure of the Airport Administrator to provide a recommendation within 45 days of his or her receipt of the variance request shall be considered a recommendation for approval.
(F) Administrative variance procedures. The Administrator shall have the authority to issue an administrative variance for the zoning regulations of this chapter following the regulations listed herein: encroachments of a principal building into any required yard up to a maximum of 10% of the applicable required yard setback provided that:
(1) The request involves only one encroachment into one required yard per lot;
(2) The encroachment is a result of a construction error by the property owner or a person acting on his or her behalf;
(3) The encroachment cannot be corrected without substantial hardship and expense to the property owner; and
(4) The encroachment, if approved, will not substantially interfere with the convenient and enjoyable use of adjacent properties and will not pose any substantial danger to the public health and safety.
(Ord. passed 10-17-2011; Res. passed 2-17-2014)