(A) Purpose. The purpose of a variance is to allow certain deviations from the standards of this chapter (such as height, yard setback, lot coverage or similar numeric 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 standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
(B) Authority. The Board of Adjustment shall review and decide any applications for variances form the requirements of this chapter in accordance with this section.
(C) Initiation. An application for a variance may only be initiated by the owner(s), of the property for which the variance is designated. Agents of property owners may apply only after submitting a notarized letter of agency containing the signatures of all owners holding a beneficial interest in the property for which the variance is designated.
(D) Procedures.
(2) Action by Board of Adjustment. After public notification and the scheduling of a public hearing, the Board of Adjustment shall conduct a quasi-judicial public hearing on the application. At the public hearing, the Board of Adjustment shall consider the application, the relevant support materials and the sworn testimony given at the public hearing. Within 31 days following the close of the public hearing, the Board of Adjustment shall approve, approve with conditions, or deny the application based on the standards in division (E) below. In accordance with the standards set forth in G.S. § 160A-388(e), granting a variance shall require an affirmative vote of at least four-fifths of the members of the Board of Adjustment who are eligible to vote. All decisions by the Board of Adjustment shall be in writing.
(E) Required findings of fact. The Board of Adjustment shall only grant a variance after having first held a quasi-judicial public hearing on the matter and having made the following findings of fact in accordance with G.S. § 160A-388(d):
(1) There are practical difficulties or unnecessary hardships caused by the strict application of the chapter requirements;
(2) Any practical difficulties or unnecessary hardships are not the result of the actions of the applicant;
(3) The reasons set forth in the application justify the granting of a variance, and that the variance is the minimum action that will make possible the reasonable use of the land or structures;
(4) The variance is in harmony with the general purpose and intent of this chapter and preserves its spirit; and
(5) In the granting of the variance, the public health, safety and general welfare have been assured and substantial justice has been done.
(F) Insufficient justification for variance. The following circumstances do not constitute grounds for a variance:
(1) The existence of other non-conforming or conforming uses of land or structures in the same or other districts;
(2) The request for a particular use expressly, or by inference, prohibited in the district; or
(3) Economic hardship or the fact that property may be utilized more profitably with a variance.
(G) Conditions of approval. In approving a variance, the Board of Adjustment may impose additional conditions on the permit approval in accordance with G.S. § 160A-381. All additional conditions imposed must be accepted by the applicant.
(H) Recordation. The applicant shall, at his or her expense, record the written decision on the variance in the office of the Register of Deeds of the county within 30 days of its issuance and provide the town with evidence of its recordation.
(I) Subsequent development. Development authorized by the variance shall not be carried out until the applicant has secured all other permits required by this chapter or any other applicable provisions of the town. A variance does not ensure that the use shall receive subsequent approval for other applications for permit approval unless the relevant and applicable portions of this chapter or any other applicable provisions are met.
(J) Variance runs with the land. A variance is not a personal right, but runs perpetually with the land for which the variance has been granted. As such, the provisions of an approved variance shall continue with the transfer of ownership of the land.
(K) Appeals. Any appeal from the decision of the Board of Adjustment shall be to the Superior Court for the county by petition for a writ of certiorari. Any petition to the Superior Court shall be filed with the Clerk of Court no later than 30 days after the date the decision of the Board of Adjustment is filed with the Town Clerk, or after the date a written copy of the decision is delivered (via personal delivery or by registered or certified mail, return receipt requested) to every aggrieved party who has filed a written request for such copy with the Board of Adjustment at the public hearing, whichever is later.
(Ord. passed 3-5-2018)