7.09.1 APPLICABILITY
A. The variance process administered by the Board of Adjustment is intended to provide limited relief from the requirements of this ordinance in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of the land in a manner otherwise allowed under this ordinance.
B. It is not intended that variances be granted solely to remove inconveniences or financial burdens that the requirements of this ordinance may impose on property owners in general or to increase the profitability of a proposed development, although such factors can be taken into consideration.
C. In no event shall the Board of Adjustment grant a variance which would allow the establishment of a use which is not otherwise allowed in a land development district or which would change the land development district classification or the district boundary of the property in question.
D. In no event shall the Board of Adjustment grant a variance which would conflict with any state code unless otherwise authorized by laws and regulations.
7.09.2 PROCEDURES
A. Pre-Application Process
Every applicant for a variance is encouraged to meet with the Administrator in a pre-application conference prior to the submittal of a formal application. The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
B. Process Type: Quasi-judicial.
C. Filing Process
An application for a variance may be filed by the owner of the property or by an agent specifically authorized by the owner to file such application.
D. Determination of Compliance
The Administrator shall review the plan to ensure that it is complete and shall prepare a report on the application for the Board of Adjustment to consider.
E. Proceedings
The filing of an appeal shall stay all proceedings in furtherance of the contested action unless the Administrator certifies that, in his/her opinion, by reason of facts stated in the certification, such a stay would cause imminent peril to life and property. In such a case, proceedings shall not be stayed except by restraining order or preliminary injunction granted by the Superior Court of Harnett County.
F. Required Application Information
Such relevant information as may reasonably allow the Board of Adjustment to understand the basis for the appeal. The Administrator shall similarly prepare a report detailing the regulations and interpretation behind the matter being appealed and their reason for their decision.
7.09.3 REVIEW PROCESS
A. Upon receiving the application, the Board of Adjustment shall conduct a public hearing on the variance.
B. After conducting the hearing, the Board of Adjustment may: deny the application; conduct an additional public hearing on the application; approve the application; or approve the application with additional conditions. A concurring vote of four-fifths of the members of the Board of Adjustment shall be necessary to grant a variance.
C. A decision by the Board of Adjustment shall be made within 45 days of the date of the hearing.
D. Any approval or denial of the request shall be accompanied by written findings of fact supporting the conclusion that the variance meets or does not meet each of the standards set forth on Section 7.09.3E. below.
E. The Board of Adjustment shall not grant a variance unless and until it makes all of the following findings:
1. Unnecessary hardship would result from the strict application of the regulation. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
2. 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.
3. The hardship did not result from actions taken by the applicant of 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.
4. The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that the public safety is secured, and substantial justice is achieved.
F. Additional Conditions
In granting any variance, the Board of Adjustment may attach such conditions to the approval as it deems necessary and appropriate to satisfy the purposes and objectives of this ordinance. The Board of Adjustment may also attach conditions in order to reduce or minimize any injurious effect of such variance upon other property in the neighborhood and to ensure compliance with other terms of this ordinance. Such conditions and safeguards must be reasonably related to the condition or circumstance that gives rise to the need for a variance.
7.09.4 STANDARDS FOR FLOOD DAMAGE PREVENTION AND WATERSHED PROTECTION VARIANCE REQUESTS
Variances from the standards set forth in this ordinance for flood damage prevention and watershed protection may be granted subject to the following additional provisions:
A. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result or when the variance will make the structure in violation of other federal, state or local laws.
B. Variances shall only be issued upon:
1. A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;
2. A showing of good and sufficient cause;
3. A determination that failure to grant the variance would result in exceptional hardship; and
4. A determination that the granting of a variance will not result in a substantial increase in flood heights, additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing laws or ordinances.
C. In passing upon variances, the Board of Adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this ordinance and:
1. The danger that material may be swept onto other lands to the injury of others.
2. The danger to life and property due to flooding or erosion damage.
3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
4. The importance of the services provided by the proposed facility to the community.
5. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use.
6. The compatibility of the proposed use with existing and anticipated development.
7. The relationship of the proposed use to the land development plan and flood damage prevention program for that area.
8. The safety of access to the property in times of flood for ordinary and emergency vehicles.
9. 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.
10. 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.
D. Any applicant to whom a variance from the floodplain development regulations is granted shall be given written notice. This notice shall specify the difference between the base flood elevation and the elevation to which the structure is to be built and contain a written statement 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. Such notification shall be maintained with a record of all variance actions. Variances records shall be provided to the Federal Emergency Management Agency upon request.
7.09.5 APPEALS
Any appeal from a decision of the Board of Adjustment may be made by an aggrieved party and shall be made to the Harnett County Superior Court. Any such petition shall be filed with the clerk of the superior court within 30 days after the decision of the Board is filed with the Town Clerk, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the Board at the time of its hearing of the case, whichever is later. The decision of the Board may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.
(Ord. passed 2-14-2017; Ord. passed 2-15-2022)