TOWN OF CARY
Zoning Board of Adjustment Hearing
December 13, 2004

TOWN OF CARY                                                                                                            CASE NO. 04-V-003
STATE OF NORTH CAROLINA

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

FINDINGS

Undisputed facts:

1.       The property is owned by Scott and Lisa Fitzmorris, who have requested the variance.

2.       The property has the following dimensions: Approximately 55’ along Brigh Stone, 101.83’ along the eastern property
    line, 173.67’ along the western property line, and 182’ along the rear property line.    

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

4.       The property is zoned Planned Development District Major, and requires a 10’ setback from the landscape buffer.

5.       The applicant is unable to obtain a building permit to add a two-story addition to the residence while meeting the
    required 10’ setback from the landscape buffer.

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

If you are inclined to deny the variance request, follow this route:

7.  No special circumstances or conditions exist that are not common to other similarly situated areas or buildings.  The neighborhood contains 50 cul-de-sacs and “bubbles”, resulting in a large number of wedge-shaped parcels, as this one is.  The fact that the parcel is affected by a buffer is also common in the neighborhood, with almost 30% of the parcels in the neighborhood affected by a buffer.

OR

8.  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 parcel is developed with a single-family residence that is of the average size of the other residences on the street;

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 there is only one other residence on this street that affects the setback from the buffer, and the deck on the home seeking the variance already has a deck that encroaches the 10’ setback from the buffer by 10’;

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 the lot is of a sufficient size to locate the addition so as not to encroach upon the buffer setback, or any other setback.

OR

9.  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 purpose of a variance to the Land Development Ordinance is to provide relief to a property owner who has a parcel whose physical characteristics make development impossible or nearly so.  This parcel has sufficient area to make an addition that would not encroach the setbacks.  It should also be noted that, in the pre-submittal discussion, the applicant noted that the addition was for a “mother-in-law”-type apartment.  The purpose of a variance is not to provide relief for a problem faced by the residents of the structure, but for a problem with the property itself.

OR

10.  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 a substantial number of residences in this neighborhood are affected by a buffer and/or by the physical characteristics caused by being located on a cul-de-sac.

OR

11.  The variance does not represent the least deviation from the regulations that will afford relief.  An addition to the residence can be made that would provide the same square footage and not encroach any setbacks.

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

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

AND

8.  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 an addition as planned cannot be constructed without the variance requested;

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 an existing deck currently encroaches the setback, and the proposed addition, while it will be taller, will not encroach the setback as much as the existing deck;

c.   Whether the variance would adversely affect the delivery of public services such as water and sewer. Finding sewer and water delivery would not be affected.;

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

e.   Whether the applicants’ predicament cannot be mitigated through some method other than a variance. Finding the addition as planned cannot be constructed without the requested variance.

AND

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.  Finding :

AND

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

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:  

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 and the general purposes of the LDO, the Board concluded that the applicant meets each of the approval criteria set forth for a variance in Section 3.20.5 of the Cary LDO.

2.       This variance is conditioned upon:

  a.  a fence being constructed _________

  b.  a buffer to be installed _____

  c.  a ________

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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