TOWN OF CARY
STATE OF NORTH CAROLINA
CASE NO.  05-V-003
DECEMBER 12, 2005
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 Crawford Brothers Company who has requested the variance.

2.       The property has the following dimensions: 374 feet along the rear elevation, 265 feet along the front elevation, 60 feet on the side elevation facing NC 55 Highway, and 80 feet on the side internal to the shopping center. The tenant space only has a storefront of 4 linear feet.    

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

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

5.       At the time of this variance request, the tenant space is currently vacant.

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 requirements existed when the applicant bought the building.

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 tenant space is pie shaped, whereas all the other in-line tenants have almost rectangular tenant spaces. There are eight in-line tenants in this building, but this is the only tenant with 4 linear feet of tenant space.

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 their 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 variance would not alter the character of the shopping center or cause a detriment;

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 effect on the delivery of public services;

d.       Whether the applicant purchased the property with knowledge of the requirement. Proposed Finding: These requirements did exist when the applicant bought the property; and

e.       Whether the applicants’ predicament cannot be mitigated through some method other than a variance. Proposed Finding: There is no other alternative for the applicant to pursue to increase the square footage for signage.

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 intent of the Uniform Sign Plan is to provide a consistent look and prevent excessive signage. The applicant will still meet all other requirements as specified in the West Park Shopping Center Uniform Sign Plan such as color, materials, and font style.

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 limitations are unique to this tenant space. Existing in-line tenants at the site have been able to meet the requirements without a variance; however, this is the only tenant space with 4 linear feet of tenant space building frontage.

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 in this shopping center. 

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: No conditions are proposed.    

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 fence being constructed _________

  a buffer to be installed _____

  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.

 Vicinity Map