Sec. 3.14. Variance

3.14.1. Applicability

A. The Board of Adjustment may vary certain requirements of this Ordinance, in harmony with the general purpose of these regulations, where unnecessary hardships would result from carrying out the strict letter of the Ordinance.

B. Despite the above and pursuant to 15A NCAC 02B .0233 and 15A NCAC 02B .0267, a “major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.” from the requirements of Sec. 8.5, Riparian Buffer Protection Standards, including where incorporated by reference, shall be granted only by the North Carolina Environmental Management Commission. A “minor variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.” may be granted by the approval authority in accordance with paragraph 8.5.12, Variances.

C. No variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall be granted that would have the effect of allowing a use not permitted in the use table in Sec. 5.1, Use Table, by Sec. 8.4, Floodplain and Flood Damage Protection Standards, or elsewhere within this Ordinance.

Commentary:  Variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. may be granted for, among other things, height, structure A walled or roofed constructed object that is principally above ground; vertical projections meeting the definition of antenna-supporting or wireless support structures; or, when used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, a gas or liquid storage tank that is principally above ground. Included in this definition are extensions or additions which are covered by a roof supported by walls or columns, such as but not limited to porte cocheres, carports, covered or screened porches, and breezeways. size, lot dimensions, and setbacks The minimum distance between a property line (or a different encumbrance, improvement, or feature as required within a specific regulation) and a building or structure..

3.14.2. Pre-Application Conference

All applicants seeking a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall schedule a pre-application conference with the Planning Director or designee to discuss the procedures, standards, and regulations required for variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. approval in accordance to the provisions of this Ordinance.

3.14.3. Application Requirements

An application for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall be submitted in accordance with paragraph 3.2.4, Application Requirementss.

3.14.4. Notice and Public Hearings

Once the application has been determined complete, the Planning Director or designee shall schedule a public hearing and give public notice as forth in paragraph 3.2.5, Notice and Public Hearings.

3.14.5. Burden of Proof

The applicant seeking the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. 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.

3.14.6. Action by the Planning Director

The Planning Director, or designee, shall provide the Board of Adjustment with a copy of the application and all relevant materials pertaining to the request prior to the public hearing.

3.14.7. Action by the Board of Adjustment

A. Each decision shall be accompanied by a finding of fact by the Board of Adjustment which specifies the reasons for the decision.

B. The Board of Adjustment may approve the request, deny the request, or continue the request. In approving the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., the Board of Adjustment may prescribe reasonable and appropriate conditions provided that the conditions are reasonably related to the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship..

3.14.8. Findings

In granting any variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., the Board of Adjustment shall make the following findings:

A. 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 A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., no reasonable use can be made of the property.

B. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. 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 grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship..

C. The hardship did not result from actions taken by the applicant or the property owner Any person having charge of any real property according to the records held by the Register of Deeds.. The act of purchasing property with knowledge that circumstances exist that may justify granting a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall not be regarded as a self-created hardship.

D. The requested variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured, and substantial justice is achieved.

3.14.9. Watershed Protection

A. A request for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. from any requirement of Sec. 8.7, Watershed Protection Overlay Standards, that violates The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. any provision in Title 15 NCAC 2B, Sections .0100, .0200, and .0300, as amended, shall be first heard by the Board of Adjustment in accordance with this section and after notification of the appropriate governing body, except that a request for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. from the requirements of Sec. 8.5, Riparian Buffer Protection Standards, as referenced by paragraph 8.7.2E, Riparian Buffers, shall proceed under paragraph 8.5.12, Variances. A recommendation from the Board of Adjustment for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall constitute a request by the local government for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. from the North Carolina Environmental Management Commission. Such variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall be considered “major variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.” in accordance with Title 15A NCAC .0104(r).

B. For all variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. requests from Sec. 8.7, Watershed Protection Overlay Standards, except those from Sec. 8.5, Riparian Buffer Protection Standards, as referenced therein, the local government with jurisdiction shall notify and allow reasonable comment period for all local governments having jurisdiction within the watershed All of the land area draining to a particular point on a water course or to a water body. area of the water supply source and the entity using the water supply for consumption.

C. The Planning Director, or designee, shall keep a record of variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. to Sec. 8.7, Watershed Protection Overlay Standards. This record of variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., not including those from Sec. 8.5, Riparian Buffer Protection Standards, as referenced in Sec. 8.7, shall be submitted to the Division of Water Resources, North Carolina Department of Environmental Quality by January 1st of each year. The record shall provide a description of each project receiving a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. and the reasons for granting a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.. The record of variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. from Sec. 8.5, Riparian Buffer Protection Standards shall be included in the annual report to the North Carolina Division of Water Resources summarizing activities implementing the requirements of that section.

3.14.10. Expiration

A variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall become null and void in any of the following cases:

A. If a site plan An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., preliminary plat A map indicating the proposed layout of a development and related information that is submitted for preliminary review., or architectural review is not approved within 12 months of the date of approval The date of approving authority action. of the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship..

B. If an approved site plan An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., preliminary plat A map indicating the proposed layout of a development and related information that is submitted for preliminary review., architectural review, or building permit A permit issued by the Inspections Department in conformance with the State Building Code. expires.

C. In cases when a site plan An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., preliminary plat A map indicating the proposed layout of a development and related information that is submitted for preliminary review., or architectural review is not required:

1. If a building permit A permit issued by the Inspections Department in conformance with the State Building Code. is not issued within two years of the date of approval The date of approving authority action..

2. If the Ordinance standard subject to the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. has been amended prior to the issuance of a building permit A permit issued by the Inspections Department in conformance with the State Building Code..

D. If a substantial violation The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of the conditions of the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. approval is determined by the Planning Director or designee.

3.14.11. Appeal

Appeal Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from final action by the Board of Adjustment on a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. can be taken by filing a petition for certiorari with the Durham County Superior Court.