TOWN OF

TOWN OF CARY
Zoning Board of Adjustment Hearing
January 12, 2004

TOWN OF CARY CASE NO. 03-V-014
STATE OF NORTH CAROLINA

STAFF CONTACT:      Beth Lewis
                                  Senior Planner
                                  (919) 462-3944
                                   e-mail: beth.lewis@townofcary.org

APPLICANT(S): Eugene and Patricia Coats

OWNER(S): Eugene and Patricia Coats

LOCATION: 202 Custer Trail, Cary , NC 27513

PRESENT ZONING: PDD Major

SETBACK:                  Front – 20’
                                   Rear – 20’
                                   Side – 15’ aggregate
                                   Decks – 5’

REQUEST: Variance of 1'9" to the required 5' setback to retain a deck constructed in
error.

VARIANCE WORKSHEET

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 Section 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 be no variance from Overlay District regulations unless specifically permitted in Section 4.4. There may be 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 situations.

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

SUMMARY

The applicants purchased the residence while it was under construction in 1990. They claim that the deck was part of the original structure. Earlier this year, while trying to sell the residence, it was found that the deck is only four (4) feet from the property line, rather than the required five (5) feet. They are requesting a variance of one (1) foot to the required five (5) foot setback for decks to correct a construction error, as provided in Table 6.3-1 of the LDO. The Town began performing setback verifications in the field in 1998, after this residence was completed.

FINDINGS

Undisputed facts:

1. The property is owned by Eugene and Patricia Coats, who have requested the variance.

2. The property has the following dimensions: Approximately 100’ along Custer Trail, 160’ along the eastern side property line, 140’ along the western side property line, and 50’ along the rear property line.

3. The property is developed with a single-family residence.

4. The property is zoned PDD Major, and requires a setback of 5’ for any decks, porches, similar structures projecting from the principal structure.

5. The applicant would be unable to get a building permit to construct a deck where the deck currently exists.

6. The applicant took part in the required pre-application conference.

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

6. No special circumstances or conditions exist that are not common to other similarly situated areas or buildings.

6. Special circumstances or conditions exist that are not common to similarly situated areas or buildings. These special circumstances are:

The applicant says the deck was part of the original residential structure and has been in place since 1990.

AND

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

The Board must consider the following:

a. Whether there can be any beneficial use of the property without the variance. Finding the structure can be used as a residence without the deck, or a deck that meets the 5’ setback requirement could replace the existing nonconforming deck;

_________________________;

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

d. Whether the applicant purchased the property with knowledge of the requirement. Finding __________;

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

7. Practical Difficulty may result from strict compliance with the Ordinance’s standards

The Board must consider the following:

a. Whether there can be any beneficial use of the property without the variance. Finding the structure can be used without the deck;

b. 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 deck has been in place since 1990 and this department has received no complaints about it that we have a record of;

c. Whether the variance would adversely affect the delivery of public services such as water and sewer. Finding services are being delivered to the surrounding residences;

d. Whether the applicant purchased the property with knowledge of the requirement. Finding the applicants purchased the residence while it was under construction and did not know there was a concern about the location of the deck;

e. Whether the applicants’ predicament can be mitigated through some method other than a variance. Finding the only solution is to remove a foot of the deck.

AND

8. 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.

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. The ordinance provides for a variance to correct a construction error.

AND

9. 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. There are residences in other area of Cary that do not meet the setbacks, either the main structures or various additions.

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

10. The variance does not represent the least deviation from the regulations that will afford relief.

The variance shall represent the least deviation from the regulations that will afford relief. The applicants are requesting to maintain the deck in its current location and shape, and no additions are sought.

If you desire to attach conditions to the grant 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 deck constructed in 1990 encroaching the required five (5) foot setback by one (1) foot.

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.

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