TOWN OF

TOWN OF CARY
STATE OF NORTH CAROLINA
CASE NO. 03-V-012
09/08/03
VARIANCE WORKSHEET

STAFF CONTACT:

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

APPLICANT:

Champion Window Co., Morrisville , NC 27560

OWNER:

Barbara Terry

LOCATION:

116 Cricketgrass Drive , Cary , NC 27513

PRESENT ZONING:		TR, Transitional Residential
SETBACK:		20’ front 15’ rear 1’ minimum, 13’ aggregate side
	REQUEST:	Variance of 8’ to the required 15’ rear setback to retain a recently-constructed patio room placed in error.

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:

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, Champion Window Co., applied for a building permit to construct a patio room. The plot plan submitted showed sufficient room in the rear yard to construct the proposed room. Once the foundation was poured, a foundation survey was required, as is usual in Cary . The foundation survey found that the patio room encroached the 15’ rear setback by 8’. The plot plan submitted to secure the original building permit was incorrect.

	Champion Window plot plan	Survey
Front setback	19’	20.5’
House	40’	43.5’
Patio room	12’	12’
Rear setback	15’	7’
TOTAL	86’	83’

A variance to retain the room is sought.

FINDINGS

Undisputed facts:

1. The application for the variance was filed by Champion Window Co., an agent for the owner Barbara Terry. Both the agent and the owner signed the application

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

3. The property has the following dimensions: 41.5’ along Cricketgrass Drive, 83’ along each side property line, 48.89’ along the rear property line.

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

5. The property is zoned TR, Transitional Residential, which requires a 20’ front setback, a 15’ rear setback, and a side yard setback with a minimum of 1’ and an aggregate of 13’.

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 of a common size in the development. The residence is one of the larger ones in the immediate area. Aerials show few, if any, of the residences have screen or patio rooms on the rear, because of the limited lot area.

A. Special circumstances or conditions exist that are not common to similarly situated areas or buildings. Finding ___.

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 few, if any, of the residences have similar rooms, because of the limited lot size. Granting the requested variance would be granting an advantage not found elsewhere in the neighborhood.

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.

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

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 is a private maintenance easement along the front property line for the delivery of 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 the only way to retain the room is to obtain a variance. A room that meets the required setback would only be 4’ wide.

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. In this instance, the property backs up to common open space, rather than another residence. This addition decreases the setback from that common open area, a resource used by all in the neighborhood, by half.

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. Finding the only way to permit the construction of such rooms in this neighborhood as a whole would be change the setback requirements for the TR district in general, and this entire neighborhood specifically. The current LDO requires developments such as this to have a combined 40’ front and rear setback, with a minimum front setback of 18’ when parking is provided between the residence and the street. This lot, even before the construction of the patio room, does not meet today’s regulations.

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.

E. The variance represents the least deviation from the regulations that will afford relief. The room is not large, and to limit its size further would make it unusable.

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:

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 retain a patio room at 116 Cricketgrass Drive .

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 UDO, 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.