TOWN OF

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

TOWN OF CARY CASE NO. 04-V-001
STATE OF NORTH CAROLINA

STAFF CONTACT:

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

APPLICANT(S):

Ira and Debbie Swift

OWNER(S):

Ira and Debbie Swift

LOCATION:

202 Mint Hill Drive , Cary , NC 27519 (Real ID #0205773)

PRESENT ZONING:		PDD Major
SETBACK:		Front – 20’ Rear – 25’ Side – 13’ aggregate, 6’ minimum Decks – 5’
	REQUEST:	Variance of 4’ to the required 25’ rear setback to construct an addition to the family room, dining room, utility room and shop area of a single family residence.

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 seek to make additions to an existing single-family residence. The proposed additions on the first floor would encroach the required 25’ rear setback by 4’. The first floor additions would enlarge the existing family room, dining room, utility room and shop.

A deck is also planned, attached to the first floor. The deck would be 17’2” from the rear property line. Since decks attached to structures built before 1998 only need to be 5’ from the property line, the deck would be conforming, needing no variance. It must be noted, however, that the deck must remain an open, unroofed structure. The second floor addition, enlarging a bonus room, bedroom, and bath, would meet the required setback, and no variance is requested for that addition.

FINDINGS

Undisputed facts:

1. The property is owned by Ira and Debbie Swift,, who have requested the variance.

2. The property has the following dimensions: Approximately 60’ along the front and rear property lines, and 85’ along the side property lines.

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

4. The property is zoned PDD Major, and requires a 25’ rear setback for enclosed structures.

5. The applicant would be unable to get a building permit to construct the planned first floor addition without a variance.

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

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

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

The property is a common rectangular shape.
It is of the same size as the others in the neighborhood.
The required setback does not impact this property more than others in the neighborhood.
While the residence is one of the smaller ones, it is not the smallest one in the immediate area. An addition that meets the setbacks could be constructed that would make this residence at least as large as the surrounding residences.
The aerial shows that the rear setbacks along the greenway are all quite even, so this residence is currently no further or closer to the rear property line than the neighboring residences.
The property backs up to a greenway, which is not uncommon in Cary . Although the greenway is not improved at this time, the aerial shows a footpath has been worn, indicating use. The greenway is also shown on Cary ’s greenway plan.

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

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 addition, or the addition could be reduced in size to accommodate the required setback. The deck as planned and the second story addition could be constructed;

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 setbacks are even along the rear property lines abutting the greenway, and the character of the rear yard areas along the greenway could be affected;

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 a smaller addition that meets the setback could be constructed.

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 ___;

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 ___;

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 claim to have not been aware of the setback when they purchased the property;

e. Whether the applicants’ predicament can be mitigated through some method other than a variance. An addition of this size can only be accommodated with a variance.

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. Since the property is of a common size and shape for the neighborhood, a variance would offer this property an advantage not available to others with the same circumstances, impairing the intent of the LDO. Additionally, the greenway that abuts this property is part of the Parks, Recreation and Cultural Resources Master Plan. An addition that encroaches the required setback from the greenway may cause users of the greenway to feel they are intruding into this property, as the other residences are further from the greenway.

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

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. This property is of common size and shape for the neighborhood, and the 25’ rear setback does not affect this property any more harshly than any other.

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. Finding ___.

AND

10. The variance does not represent the least deviation from the regulations that will afford relief. A smaller addition, to mirror the planned second story addition, would meet the required setback.

The variance shall represent the least deviation from the regulations that will afford relief. Finding ___.

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 of 4’ to the required 25’ rear setback to make an addition to a single family residence.

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