TOWN OF

TOWN OF CARY
STATE OF NORTH CAROLINA
CASE NO. 03-V-011
09/08/03
VARIANCE WORKSHEET

STAFF CONTACT:

Beth Lewis
Planner
(919) 465-4610
e-mail: beth.lewis@townofcary.org

APPLICANT:

Cheri Daniels

OWNER:

Cheri Daniels

LOCATION:

101 Solway Court , Cary , NC 27511

PRESENT ZONING:		R12, Residential-12
SETBACK:		30’ front 25’ rear 10’ side 5’ side and/or rear for detached accessory structures 5’ between principal building and detached accessory structures
	REQUEST:	Variance of 5’ to the required 5’ setback for an accessory structure, and a variance of 4.5’ to the required 5’ setback between the principal structure and a detached accessory structure to construct a 20’ wide detached carport.

FACTORS RELEVANT TO THE ISSUANCE OF A VARIANCE

The “variance process… is intended to provide limited relief from the (LDO) in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed” under the LDO. It is not intended that variances be granted merely to remove inconveniences or financial burdens that the requirements of the LDO may impose on property owners in general. Rather, it is intended to provide relief where the requirements of the LDO render land difficult or impossible to use because of some unique physical attribute of the property itself or some other factor unique to the property for which the variance is requested. Neither state nor federal requirements may be varied by the Town. (Sec. 3.20.1)

·         Only the following standards are eligible for a variance (3.20.2):
·         Lot width, setback, height, building coverage, or structure spacing standards set forth in Chapters 6 and 7;
·         Buffer width standards set forth in Section 7.2.3 when the Minor Modification procedures are unable to address the
      hardship:
·         Any off-street parking and loading standards set forth in Section 7.8 when the Minor Modification procedures are
      unable
      to address the hardship;
·         Setback standards for real estate signs in Section 9.3.2(R );
·         Square footage standards of wall signs in Sections 9.3.2(W) and (X);
·         Signage requirements in Town Center area set forth in Section 9.6 provided the request has been reviewed and       recommended for approval by the Town Center Review Commission.

The Board may not grant a variance to allow a use not permitted or a use expressly or by implication prohibited under the LDO for the zoning district containing the property for which the variance is sought [3.20.4(E)]. The Board may not grant a variance from any written conditions attached by the Council to its approval of a Special Use, subdivision plat or site plan, conditional use district, or aspect of an approved planned development master plan. [3.20.4(F)]. There may no variance that modifies the thoroughfare buffer or vegetation [4.4.4(E)].

Approval Criteria. The Board may approve the variance only if it finds that all of the criteria below have been met (3.20.5):

A.      Special circumstances or conditions exist (e.g., narrowness, exceptional topographic conditions, or the shape of
        the property) that are not common to other areas or buildings that are similarly situated and practical difficulty
        may result from strict compliance with this Ordinance’s standards, provided that the requested variance will not
        have the effect of nullifying or impairing the intent and purposes of either the specific standards, this Ordinance, or
        the Comprehensive Plan. In determining “practical difficulty”, the Board shall consider the following factors:

1. Whether there can be any beneficial use of the property without the variance;

2. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;

3. Whether the variance would adversely affect the delivery of public services such as water and sewer;

4. Whether the applicant purchased the property with knowledge of the requirement; and

5. Whether the applicant’s predicament can be mitigated through some method other than a variance.

B. No variance shall be granted if the conditions or circumstances affecting the applicant’s property are of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situation.

C. If authorized, the variance shall represent the least deviation from the regulations that will afford relief.

SUMMARY

The applicant is seeking variance to construct a 20’ wide carport. The plan shows the carport approximately 6” from the principal structure, and right up to the side property line. Accessory structures can be as close as 5’ to the property line, but must be at least 5’ from the principal structure as well. Therefore, a variance of 5’ to the required 5’ side setback is required, as well as a variance of 4.5’ to the required 5’ setback between a principal structure and an accessory structure.

FINDINGS

Undisputed facts:

1. The application for the variance was filed by Cheri Daniels, the owner of the property.

2. The applicant took part in the pre-application conference required by 3.10.3(B).

3. The property has the following dimensions: 90’ along Solway Court , 150’ along the northern side property line, 140’ along the southern side property line, and 122’ along the rear property line.

4. The property is improved with a single-family residence.

5. The property is zoned R12, Residential 12, which requires a 30’ front setback, a 25’ rear setback, a 10’ side setback, a 5’ setback from the property line for a detached accessory structure, and a 5’ setback between the principal structure and a detached accessory structure.

If you are inclined to deny the                                      If you are inclined to grant the variance
variance request, follow this                                        request, follow this route. You must find
route:                                                                        ALL of the following:

A. No special circumstances or conditions exist that are not common to other similarly situated areas or buildings. The lot is over 14,000 square feet and of a generally rectangular shape. It is of a size and shape common in Cary . It has an easement along the side opposite the one where the carport is planned and along the rear, but the rear yard is large.

A. Special circumstances or conditions exist that are not common to similarly situated areas or buildings. The property owner says relocating the proposed carport further back into rear yard would require the removal of several trees.

AND

B. There is no practical difficulty that may result from strict compliance with the Ordinance’s standards.

The Board must consider the following:

1. Whether there can be any beneficial use of the property without the variance. Finding the property is developed with a residence.

2. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance. Finding the proposed carport would be up to the property line. While the applicant claims that the current neighbor doesn’t mind the proposed location of the carport, the situation may change if one or the other sold their property.

3. Whether the variance would adversely affect the delivery of public services such as water and sewer. Finding _____.

4. Whether the applicant purchased the property with the knowledge of the requirement. Finding the residence existed when the applicant purchased the property. The applicant also recently made an addition to the residence that does not appear on the survey, so she was made aware of the setback requirements at that time.

5. Whether the applicant’s predicament can be mitigated through some method other than a variance. Finding the structure could be located in another, perhaps less convenient place in the rear yard, and not affect any setbacks. Alternately, the structure could be attached to the principal structure. That would require it to meet the 10’ side setback, which it couldn’t without a variance. But, if the structure is located away from the side property line, the owner could install a fence or landscape buffer to mitigate the intrusion into the neighbor’s yard.

B. Practical difficulty may result from strict compliance with the Ordinance’s standards.

The Board must consider the following:

Whether there cannot be any beneficial use of the property without the variance. Finding ___.
Whether the essential character of the neighborhood would not be substantially altered or whether adjoining properties would not suffer a substantial detriment as a result of the variance. Finding ___.
Whether the variance would not adversely affect the delivery of public services such as water and sewer. Finding there are easements along one side and the rear property lines, providing for the delivery of public services.
Whether the applicant purchased the property without the knowledge of the requirement. Finding ___.
Whether the applicant’s predicament cannot be mitigated through some method other than a variance. Finding ___.

AND

C. The requested variance will have the effect of nullifying or impairing the intent and purposes of the specific standards, the Ordinance, or the Comprehensive Plan.

C. The requested variance will not have the effect of nullifying or impairing the intent and purposes of the specific standards, the Ordinance, or the Comprehensive Plan.

AND

D. The conditions or circumstances found to affect the applicant’s property are of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation to address the conditions or circumstances. The property is slightly larger along the rear property line than along the front, as are many properties in Cary . The lot is 0.33 acres in size, not small for Cary . The residence was placed across the width of the property as is common, but the proposed carport could be located so as to affect the setbacks and neighbors to a lesser extent.

D. The conditions or circumstances found to affect the applicant’s property are not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation to address the conditions or circumstances.

AND

E. The variance does not represent the least deviation from the regulations that will afford relief. Moving the carport to another location could decrease its impact on the setbacks, or lessen the impacts on the neighbors. The carport could be located further back on the lot at the cost of some trees, requiring no variances at all.

E. The variance represents the least deviation from the regulations that will afford relief.

If you desire to attach conditions to the granting of the variance,

Requiring certain conditions to be met will alleviate the problems with granting the variance.

Conditions: The carport is to be moved closer to and attached to the principal structure. This would require a variance of 8’ or 9’ to the required 10’ side setback for the principal structure. However, attaching the carport to the principal structure would negate the need for the variance of 4.5’ to the required 5’ setback between the principal structure and the accessory structure. It would give the owner space to install a fence or landscaped buffer to lessen the impact of the carport on the neighboring property.

MOTION TO GRANT VARIANCE WITH/WITHOUT CONDITIONS

After conducting a duly advertised public hearing and reviewing the application materials, testimony and evidence and the approval criteria of Section 3.20.5, we find the following

FACTS: [insert facts found]

CONCLUSION:

1. Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board concludes that the applicant meets each of the approval criteria set forth for a variance in Section 3.20.5 of the Cary LDO.

2. The applicant is hereby granted a variance to construct a detached 20-wide carport to be located at 101 Solway Court .

3. This variance is conditioned upon:

a fence being constructed _________
a buffer to be installed _____
a ________

MOTION TO DENY VARIANCE

After conducting a duly advertised public hearing and reviewing the application materials, testimony and evidence and the approval criteria of the LDO, we find the following

FACTS: [insert facts found]

CONCLUSION:

1. Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board concludes that the applicant has not met the approval criteria set forth for a variance in Section 3.20.5 of the Cary LDO, and the application is DENIED.

Large Vicinity Map

Small Vicinity Map

sheet LDO proposed.