(A) Applicability.
(1) The Board of Adjustment may vary certain requirements of this chapter that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter, will, in an individual case, result in practical difficulty or unnecessary hardship. The Board of Adjustment shall ensure that the spirit of this chapter shall be observed, public safety and welfare secured, and substantial justice done.
(2) The existence of a nonconforming use of neighboring land, building, or structure in the same district, or of permitted or nonconforming uses in other districts, shall not constitute a reason for the requested variance.
(B) Application requirements. An application for a variance shall be submitted in accordance with § 156.702.
(C) Notice and public hearings. The town shall hold all required public hearings and give notice in accordance with § 156.702.
(D) Burden of proof. The applicant seeking the variance shall have the burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth below as well as the burden of persuasion on those issues.
(E) Action by Planning Director. The Planning Director shall provide the Board of Adjustment with a copy of the application and all relevant materials pertaining to the request.
(F) Action by Board of Adjustment.
(1) Procedure.
(a) The Board of Adjustment may approve the request, deny the request, or continue the request.
(b) Each decision shall be accompanied by a finding of fact that specifies the reason for the decision.
(c) In approving the variance, the Board of Adjustment may prescribe reasonable and appropriate conditions which will ensure that the use will be compatible with adjacent properties and will not alter the character of the neighborhood.
(d) Conditions may be imposed by the Board of Adjustment regarding the location, character, and other features of the proposed building or use as may be deemed by the Board of Adjustment to protect property values and general welfare of the neighborhood. Nonconformance with such conditions and safeguards, when part of the terms under which the variance is granted, shall be deemed a violation of this chapter.
(2) Findings of fact. No variance shall be approved by the Board of Adjustment unless all of the following findings are made:
(a) There are exceptional conditions pertaining to the particular piece of property in question because of its shape, size, or topography, that are not applicable to other lands or structures in the same district, or there is a peculiar characteristic of an establishment which makes the parking and/or loading requirements of this chapter unrealistic;
(b) Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located;
(c) A literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located;
(d) 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;
(e) The special circumstances are not the result of the actions of the applicant;
(f) The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure;
(g) The variance is not a request to permit a use which is not a permitted or conditional use in the district involved; and
(h) The variance is not granted simply because by granting the variance, the property could be utilized more profitably or that the developer/owner would save money.
(G) Watershed protection.
(1) An appeal to reverse or modify the order, decision, determination, or interpretation of the Planning Director shall comply with § 156.717.
(2) A petition for variance to the standards of watershed protection shall comply with the following:
(a) Minor variances. Minor variances shall include petitions for the reduction of any standard of watershed protection, by a factor of less than 10%, except residential density or impervious surface area.
(b) Major variances.
1. Petitions for the reduction of any standard of the watershed protection, by a factor of 10% or more; and
2. Petitions to increase residential density or impervious surface area.
(c) Approval procedures.
1. Prior to the Board of Adjustment meeting, the Planning Director shall notify in writing the Towns of Smithfield, Selma and Wilsons Mill, and Johnston County of the variance being requested. Written responses from any of these local governments using the Neuse River as a water supply shall become a permanent part of the records.
2. Minor variances shall be approved by the Board of Adjustment in accordance with divisions (B) through (F) above.
3. Major variances shall comply with divisions (B) through (F) above except that:
a. A decision by the Board of Adjustment to approve a major variance shall be advisory only. The Planning Director shall, within 30 days, forward a record of the Board of Adjustment hearing, findings, and conclusions to the appropriate state agency for final decision; and
b. The Board of Adjustment may advise approval of a major variance petition upon satisfying the findings of division (F)(2) above, or upon the finding that significant community economic or social benefit would be derived from the granting of the variance.
(Ord. passed 6- -2019)