A. Purpose and Intent. The purpose of this section is to allow certain deviations from the dimensional standards of this Ordinance (such as height, yard setback, lot coverage, or similar numerical standards) when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as topographical conditions, narrowness, shallowness, or shape of a specific parcel of land), a 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. This section also includes standards for variance from the Town's special flood hazard area standards in Section 3.8.2, Flood Hazard Overlay (FHO) District, as well as the procedures and standards for variances from the watershed protection standards included in Section 3.3.2, Residential Watershed (R1) District.
B. Applicability.
1. Development that would otherwise be subject to undue and unique hardship from the applications of the standards in this Ordinance may seek relief from the standards in accordance with this section.
2. No variance may be sought that increases development density (e.g., units per acre) beyond that allowed in a base zoning district, or that would permit a use not allowed in a zoning district.
C. Variance Procedure. The variance procedure is described in Figure 2.2.22, Variance Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
D. Board of Adjustment Review and Decision.
1. The BOA, after the conclusion of a quasi-judicial public hearing, shall decide the application for a variance.
2. The decision shall be based on the evidence in the record, as supplemented by the arguments presented at the quasi-judicial hearing, and the standards in Section 2.2.22.G, Variance Review Standards.
3. The decision shall be one of the following:
a. Approval of the variance as proposed;
b. Approval of the variance with revisions; or
c. Denial of the variance.
4. The concurring vote of four-fifths of the BOA shall be necessary to grant a variance.
5. Each decision shall be made in writing and reflect the BOA's determination of facts and their application to the standards in this Ordinance.
6. The written decision shall be signed by the Chair or other duly authorized member of the BOA.
7. The decision of the BOA shall be effective upon the filing of the written decision.
E. Notification of Decision. The decision of the BOA shall be delivered by personal service, electronic mail, or by first-class mail to the applicant, the landowner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person providing notification of decision shall certify that proper notification has been made.
F. Recordation. If a variance application is approved, the notice of decision may be recorded by the applicant in the office of the Wake County Register of Deeds.
G. Variance Review Standards. The standards in this section are organized into the standards applicable to variances from the zoning-related provisions, the flood hazard overlay provisions, and the watershed protection provisions.
1. Zoning-Related Variance Standards.
a. Required Findings of Fact. A zoning variance shall be approved on a finding the applicant demonstrates all of the following:
i. Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
ii. 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.
iii. 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 the variance shall not be regarded as a self-created hardship.
iv. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.
b. Other Considerations. In addition to the making the required findings in subsection (a) above, the BOA may also consider the following:
i. The variance approval is the minimum necessary to make possible the reasonable use of the land, building, or structure.
ii. All property taxes on the land subject to the variance application have been paid in full.
iii. None of the following may be used as the basis for approving a variance:
1. Neither the nonconforming use of lands, buildings, or structures in the same zoning district, or the permitted use of lands, buildings, or structures in other zoning districts, or personal circumstances;
2. A request for a particular use that is expressly, or by inference, prohibited in the zoning district;
3. Hardships resulting from factors other than application of the relevant standards of this ordinance;
4. The fact that land or a structure may be utilized more profitably or be more marketable with a variance;
5. The citing of other conforming or nonconforming uses of land or structures in the same or other zoning districts; or
6. Financial hardship.
2. Flood Hazard Overlay Variance Standards. In addition to the standards for a zoning variance, variances from the flood hazard overlay standards in this Ordinance shall be reviewed and decided in accordance with the standards in Section 3.8.2, Flood Hazard Overlay (FHO) District, and the following:
a. Required Findings of Fact. A variance from the flood hazard area standards shall be approved on a finding the applicant demonstrates all of the following standards are met:
i. There is a good and sufficient cause to grant the variance;
ii. The variance is the minimum necessary to provide relief;
iii. Failure to grant the variance would result in exceptional hardship to the landowner; and
iv. Granting the 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 this Ordinance.
b. Other Considerations. In addition to making the required findings in subsection (a) above, the BOA may also consider the following:
i. Approval of the variance will not render the building in violation of applicable federal, state, or local requirements;
ii. Approval of the variance will not result in any increase in flood levels within any designated floodway or non-encroachment area during the base flood discharge;
iii. The variance is issued prior to any other prerequisite permit or development approvals;
c. Historic Sites or Structures. Reconstruction or rehabilitation of structures listed on the National Register of Historic Places or the State Inventory of Historic Places may occur in a flood hazard area without need for obtaining a variance in accordance with this subsection.
d. Required Findings for Denial. All of the following factors shall be considered by the BOA if an application for a variance to the flood hazard area standards is denied:
1. The danger that materials may be swept onto other lands and injure others;
2. The danger to life and land 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 landowner;
4. The importance of the services provided by the proposed facility to the community;
5. The necessity to the facility of a waterfront location as a functionally-dependent facility;
6. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
7. The compatibility of the proposed use with existing and anticipated development;
8. The relationship of the proposed use to the town's adopted policy guidance and the town's floodplain management program;
9. The safety of access to the use in times of flood for ordinary emergency vehicles;
10. The expected height, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
11. 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. Watershed Protection Variance Standards.
a. Variances Distinguished.
i. Variances from the water supply watershed standards in Section 3.3.2, Residential Watershed (R1) District, in the shall take the form of a minor variance or a major variance.
ii. Major variances pertain to any of the following:
1. The relaxation, by a factor greater that 10 percent, of any management requirement under the low density option;
2. The relaxation, by a factor greater than five percent, of any buffer, density or built upon area requirement under the high density option; or
3. Any variation in the design, maintenance or operation requirements of a wet detention pond or other approved stormwater management system.
iii. Minor variances pertain to a relaxation, by a factor of up to ten percent of any buffer, density, or built-upon area requirement under the low density option.
b. Required Findings of Fact. 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:
i. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. In order to determine that there are practical difficulties or unnecessary hardships, the Board must find that the five following conditions exist:
1. In complying with the provisions of this Ordinance, the applicant can secure no reasonable return from, nor make reasonable use of, their 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 granting of a minor variance. Moreover, the BOA shall consider whether the variance is the minimum possible deviation from the terms of this Ordinance that will make possible the reasonable use of the property;
2. The hardship results from the application of the ordinance to the property rather than from other factors such as deed restrictions or other hardship;
3. The hardship is due to the physical nature of the applicant's property, such as 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 ordinance, or who purchases the property after the effective date of the ordinance 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 special privilege denied to others, and would not promote equal justice.
ii. The variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit.
iii. In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The BOA shall not grant a variance if it finds that doing so would in any respect impair the public health, safety, or general welfare.
c. Conditions of Approval.
i. In granting a variance approval, the BOA may attach conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable.
ii. If a variance for the construction, alteration, or use of property is granted, the construction, alteration or use shall be in accordance with the approved site plan.
d. Prior Denial. The BOA 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.
e. Expiration. 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 the use is not obtained by the applicant within six months from the date of the decision.
f. Additional Provisions for Major Variances.
i. Generally. If the application calls for the granting of a major variance, and if the BOA decides in favor of granting the variance, the BOA shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include the following:
1. The variance application;
2. The hearing notices;
3. The evidence presented;
4. Motions, offers of proof, objections to evidence and rulings on them;
5. Proposed findings and exceptions; and
6. The proposed decision, including all conditions proposed to be added to the permit.
ii. Action by the Environmental Management Commission. The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
1. If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and 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 decision and send it to the BOA. If the Commission approves the variance as proposed, the BOA shall prepare a final decision granting the proposed variance.
3. If the Commission approves the variance with conditions and stipulations, the BOA shall prepare a final decision, including those conditions and stipulations, granting the proposed variance.
4. If the Commission concludes from a preliminary record that the variance qualifies as a major variance and that the property owner can secure a reasonable return from or make a practical use of the property without the variance or 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.
5. The Commission shall prepare a decision and send it to the BOA.
6. The BOA shall prepare a final decision denying the variance as proposed.
H. Insufficient Grounds for Approving Variances. The following factors shall not constitute sufficient grounds for approval of any variance:
1. A request for a particular use that is expressly, or by inference, prohibited in the zoning district;
2. Hardships resulting from factors other than application of requirements of this Ordinance;
3. The fact that land or a structure may be utilized more profitably or be more marketable with a variance; or
4. The citing of other nonconforming or conforming uses of land or structures in the same or other zoning districts.
I. Conditions of Approval. In granting a variance, the BOA may prescribe conditions of approval to ensure compliance with the standards of this section, and to assure that the use of the land to which the variance applies will be compatible with surrounding lands and will not alter the essential character of the neighborhood.
1. A variance granted subject to a condition of approval shall be permitted as long as there is compliance with the condition.
2. Violation of a condition of approval shall be deemed a violation of this Ordinance.
3. If a violation or invalidation of a condition of approval occurs, the Planning Director may revoke the authorization for the development subject to the variance.
J. Effect.
1. General. Approval of a variance authorizes only the particular regulatory relief approved by the BOA. It does not exempt the applicant from the responsibility to obtain all other permits or development approvals required by this Ordinance or any other applicable laws, and does not indicate that the development for which the variance is granted should receive other permits or development approvals under this Ordinance unless the relevant and applicable portions of this Ordinance are met.
2. Notification Regarding Flood Insurance Costs.
a. An applicant for whom a flood hazard area variance is approved shall be provided written notice by the Planning Director specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is built. The notice shall inform the applicant about the risks to life and property from construction below the BFE and that issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance.
b. The notification shall be maintained by the Planning Director with the record of the variance action.
3. Records. Upon request, the Planning Director shall report all flood-related variances approved in accordance with this section to the Federal Emergency Management Agency and the State of North Carolina.
K. Amendment. Amendment of a variance may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
L. Expiration.
1. If the BOA does not include a time period by which development subject to variance expires, development shall commence within 12 months of the date of issuance of the variance or the variance shall expire and become null and void.
2. A variance shall expire and become invalid if the property owner changes development on the site such that the extraordinary and exceptional conditions that warranted the hardship and variance no longer do so.
M. Appeal.
1. Any decision by the BOA shall be subject to review by the Superior Court of Wake County by proceedings in the nature of certiorari and in accordance with Section 160D-1402 of the North Carolina General Statutes.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019; Ord. 2021-65, passed 5-3-2021)