(A) General.
(1) An application for a variance along with the required filing fee shall be submitted to the Board of Adjustment by filing a copy of the application with the Zoning Administrator.
(2) A variance may be granted by the Board of Adjustment if it concludes that strict enforcement of the UDO would result in unnecessary hardships for the applicant. The Board shall vary any provision of the zoning regulation upon a showing of all of the following:
(a) If the applicant complies strictly with the provisions of the UDO, he or she will experience unnecessary hardship;
(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. 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;
(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 is not a self-created hardship; and
(d) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
(3) In granting variances, the Board of Adjustment may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practicable with the surrounding properties. 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.
(4) A variance may be issued for an indefinite duration or for a specified duration only. Unless otherwise specified, any order or decision of the Board of Adjustment granting a variance shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within 60 calendar days from the date of the decision or if construction of the use has not commenced within 180 calendar days from the date of the issuance of a building permit.
(5) The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of the UDO.
(6) No change in permitted uses may be authorized by variance.
(B) Variances from Flood Hazard Overlay District requirements. The Board of Adjustment, hereinafter referred to as the “appeal board”, is authorized to review and decide upon request for variances from the Flood Hazard Overlay District Requirements delineated in § 156.02 pursuant to the provisions delineated in this section.
(1) Variances may be issued by the Board of Adjustment for:
(a) The repair or 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 that 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 Chapter 163, provided the provisions of Chapter 156 have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety; or
(c) Any other type of development provided it meets the requirements stated in this section.
(2) In passing upon variances, the Board of Adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of the UDO, 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 the 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 Chapter 163 as a functionally dependent 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 of 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 floodwaters 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 and water systems and streets and bridges.
(3) A written report addressing each of the above factors shall be submitted with the application for a variance.
(4) Upon consideration of the factors listed above and the purposes of the UDO, the Board of Adjustment may attach conditions to the granting of variances as it deems necessary to further the purposes of the UDO.
(5) 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 that such construction below the base flood elevation increases risks to life and property, and that the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to $25 per $100 of insurance coverage. The notification shall be maintained with a record of all variance actions, including justification for their issuance.
(6) The Zoning 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) Conditions for variances:
(a) Variances shall 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 not be issued within any designated floodway or non-encroachment area if the variance would result in any increase in flood levels during the base flood discharge;
(c) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;
(d) Variances shall only be issued prior to development permit approval; and
(e) 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, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
(8) 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 floodplain development permit may be issued for the development only if a variance is granted.
(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 level.
(d) The use complies with all other applicable federal, state and local laws.
(e) The city has notified the Secretary of the North Carolina Department of Public Safety of its intention to grant a variance at least 30 days prior to granting the variance.
(C) Variances from "The Neuse River Basin Stormwater Ordinance for New Development."
(1) The Board of Adjustment, hereinafter referred to as the "Board", is authorized to review and decide upon requests for major and minor variances for the stormwater ordinance in Chapter 53 pursuant to the provisions set forth in this section.
(2) Any person may petition the City for a variance granting permission to use the person's land in a manner otherwise prohibited by the stormwater ordinance in Chapter 53.
(3) For all proposed variances from the stormwater ordinance, the Board of Adjustment shall make findings of fact in accordance with the procedures set forth in Chapter 159 and § 153.03 showing that:
(a) There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the ordinance;
(b) The variance is in harmony with the general purpose and intent of the stormwater ordinance and preserves its spirit; and
(c) In granting the variance, the project will ensure equal or better protection of waters of the State than the requirements of 15A NCAC 02B.0711 (Neuse Storm Water Rule) and that the public safety and welfare have been assured and substantial justice has been done.
(4) In the case of a request for a minor variance, as defined in Chapter 53, the Board may vary or modify any of the regulations or provisions of the chapter so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done may impose reasonable and appropriate conditions and safeguards upon any variance it grants.
(5) The Board may attach conditions to the variance approval that support the purpose of the stormwater ordinance.
(6) If the variance request qualifies as a major variance, as defined in Chapter 53, and the Board decides in favor of granting the major variance, the Board shall then prepare a preliminary record of the hearing and submit it to the North Carolina Environmental Management Commission for review and approval. If the Commission approves the major variance or approves with conditions or stipulations added, then the Commission shall prepare a Commission decision which authorizes Board to issue a final decision which would include any conditions or stipulations added by the Commission. If the Commission denies the major variance, then the Commission shall prepare a decision to be sent to the Board and the Board shall prepare a final decision denying the major variance.
(7) Appeals from the Board's decision on a major or minor variance request are made on certiorari to the local Craven County Superior Court. Appeals from the Commission decision on a major variance request are made on judicial review to Superior Court.
(D) Administrative action on insignificant or “de minimis” variances. The Planning and Inspections Director, after consultation with the City Attorney, shall be authorized to grant a “no action” letter to applicants for a variance when the violation of set back or similar failure to meet ordinance standards is less than 5% of requirements. The letter shall state that the city will not take enforcement action based on the submitted violation. The applicant must provide the Planning and Inspections Director with a plat or drawing clearly illustrating the ordinance discrepancy and must also document that the correction of the error would be cost prohibitive. No prospective actions may be considered.
(Ord. passed 7-25-2011; Ord. 20-O-03, passed 6-1-2020; Ord. 21-O-04, passed 6-28-2021; Ord. 23-O-07, passed 4-10-2023)