TOWN OF CARY
STATE OF NORTH CAROLINA
CASE NO.  05-V-002
DECEMBER 12, 2005
VARIANCE WORKSHEET

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 Crown/West Park, LLC., located at 2740 NC 55 Highway.  Brenda Carroll is a tenant in this building and has requested the variance.  Ms. Carroll’s request is supported by the property owner.

2.       The property has the following dimensions: The outparcel side elevation, which faces NC 55 Highway, is 78 feet. The east elevation toward the back of the shopping center is also 78 feet. The north elevation facing the entrance drive and the south elevation facing Parkscene Lane are both 45 feet.    

3.       The property is developed with a mix of office and retail uses.

4.       The property is zoned PDD Major and requires compliance with the West Park Shopping Center Uniform Sign Plan.

5.       This is a two story building with four tenants.

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

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

1-6 (See above).

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

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. Proposed Finding:  The property can be used for a tenant that does not rely on visibility to the public.

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.  Proposed Finding:  

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

d.       Whether the applicant purchased the property with knowledge of the requirement. Proposed Finding:  The basic requirements staff needed to determine allowable sign area are part of the Town’s Land Development Ordinance, but the ability to complete the calculation depends on the number of tenants in a building and an assessment of their total sign requests. 

e.       Whether the applicant’s predicament can be mitigated through some method other than a variance. Proposed Finding:  There is no other process to grant an increase in allowable sign area.

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.  Proposed Finding:  

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.  Proposed Finding:  

OR

11.  The variance does not represent the least deviation from the regulations that will afford relief.  Proposed Finding:  

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

1-6 (See above).

7.  Special circumstances or conditions exist that are not common to similarly situated areas or buildings. These special circumstances are:  The building is an out-parcel located in an Activity Center Overlay District. Per activity center design guidelines mandated by The Town of  Cary, the building was physically situated close to NC 55 Highway with a steep landscaped berm between the building and the road. This out-parcel sits a floor level below the road grade, therefore requiring more legible signage on the NC 55 Highway elevation. Window signage for first floor tenants provides them with no visibility from the public Right-of-Way.  Because the first floor tenants needed signs to place signs on the NC 55 Highway elevation, the amount of sign area remaining for the second floor tenants was reduced

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. Proposed Finding:  While a  beneficial use of the property can exist without the variance, this tenant would not have the same sign area allowed to other tenants in this shopping center and would  have reduced visibility for her business;

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.  Proposed Finding:  The character of the shopping center would not be adversely impacted by granting this variance;

c.       Whether the variance would adversely affect the delivery of public services such as water and sewer. Proposed Finding: Granting this variance would have no impact on the delivery of public services;

d.       Whether the applicant purchased the property with knowledge of the requirement. Proposed Finding:    The basic requirements staff needs to determine allowable sign area are part of the Town’s Land Development Ordinance. The ability to complete the calculation depends on the number of tenants in the building and an assessment of their total sign requests.  The process is more complex for multi-tenant buildings and takes into consideration, placement of doors and windows; and

e.  Whether the applicants’ predicament cannot be mitigated through some method other than a
      variance. Proposed Finding:  There is no other process to grant an increase in allowable sign
      area.

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.  Proposed Finding:  The basic requirements of the Uniform Sign Plan, in terms of colors, materials, and letter style will still be met.

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.  Proposed Finding:  The shape and style of this particular building is unique when compared to other single tenant buildings on-site.

AND

The variance shall represent the least deviation from the regulations that will afford relief.  Proposed Finding:  Granting this variance will ensure an equitable amount of sign area for this tenant on this out-parcel comparable to the Dunkin Donuts/Baskin Robbins’ sign area. 

 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: There are no conditions associated with this variance request.   

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:

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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