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What is a variance?
When practical difficulties, special conditions, or unnecessary hardships would result from carrying out the strict letter of the Land Development Code, the Planning Board shall have the power to vary or modify any of the regulations or provisions of the LDC relating to the construction or alteration of buildings or structures or the use of land.
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Case Law Considerations
The power of variances is to be sparingly exercised and only in rare instances and under exceptional circumstances peculiar in their nature and with due regard to the main purpose of a zoning ordinance to preserve the property rights of others. Real Properties v. Board of Appeals of Boston 319 Mass. 180, 65 N.E.2d 199 (1946).
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Statutory Considerations and Required Findings
The Planning Board may only grant a variance, having first held a public hearing on the matter and having made the following determinations:
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There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance; and
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If the applicant complies with the provisions of the ordinance, the property owner can secure no reasonable return from, or make no reasonable use of, his property.
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The hardships results from the application of the ordinance.
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The hardship is suffered by the applicant property.
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The hardship is not the result of the applicant’s own actions.
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That the variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit; and
That in the granting of the variance, the public safety and welfare have been assured and substantial justice has been done; and
That the reasons set forth in the application justify the granting of a variance, and that the variance is a minimum one that will make possible the reasonable use of land or structures.
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Land Development Code Considerations
The Planning Board, in considering an application for a variance, shall give due consideration to the following:
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The citing of other nonconforming or conforming uses of land or structures in the same or other districts shall not be considered grounds for the granting of a variance.
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The request for a variance for a particular use expressly, or by inference, prohibited in the district involved, shall not be granted.
The Planning Board, in granting a variance, may prescribe appropriate conditions and safeguards in conformity with this Ordinance. Violation of such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this Ordinance and shall be punishable as prescribed in Section 15.6 of this Ordinance.
Unless otherwise authorized by the Planning Board and included in its decision to grant a variance, any order of the Planning Board in granting a variance shall expire, if a building permit, or certificate of occupancy (for a use for which a building permit is not required), has not been obtained within one (1) year from the date of its decision.
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How much will it cost?
It will cost $250.00 to file a variance request. A watershed variance application costs $500.
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How long will it take?
A variance is approximately a 2 month process. Back to Top
What is the Process?
After you have met with Staff to discuss your case and submitted the variance application, fee, copy of plan and any supporting evidence (at least 30 days prior to the meeting at which it is to be heard) the item will move through the following process:
- Public Notice. Planning Staff will issue notice of the public hearing by newspaper, Adjacent Property Owner letters, and place a zoning sign on the site.
- Planning Board Meeting. The Planning Board, acting as the Board of Adjustment, will hold a public hearing for the item. This is a quasi-judicial proceeding in which anyone presenting testimony or evidence must be sworn in.
The Board may grant the variance if the following determinations are made:
- There are difficulties or hardships in carrying out the regulations of the Code.
- The variance is in agreement with the purpose and intent of the Code.
- The variance will promote public safety and welfare.
- The reasons in the application justify granting the variance, and the variance is minimal and will make the use of the land or structure possible.
- The Applicant should keep the following in mind when presenting testimony:
- Other examples of conforming or nonconforming uses/structures cannot be considered grounds for granting the variance.
- A variance request for particular use prohibited in the district involved will not be granted.
- Granting or Denial of the Variance. A letter stating the status of the variance will be mailed to the applicant and all relevant parties who request it in writing.
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Can I appeal the decision?
The Board of Adjustment’s variance determination can be appealed to the Superior Court Division of the General Courts of Justices of the State of North Carolina. A petition for review by the Superior Court must be filed with the Clerk of Superior Court within 30 days of the time in which all aggrieved parties receive their letter, as requested, stating the status of the variance.
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Can a variance expire?
Yes. A variance can expire. When the Board of Adjustment makes the determination to grant a variance, Planning Staff will send a letter to the applicant. If a building permit or certificate of occupancy is not obtained within one (1) year from the date the letter is received, the variance will expire.
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Complete a variance application.
If you would like to submit a variance application, please print, complete and return the application to the Planning Department.
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