TOWN
OF
Zoning Board of Adjustment Hearing
VARIANCE
WORKSHEET
TOWN OF
STATE
OF NORTH CAROLINA
APPLICANT/PROPERTY OWNER:
Judith Tilley Stewart
STAFF
CONTACT/PRESENTER:
Jennifer Currin
Town of
Planner II
(919) 469-4342
e-mail: Jennifer.currin@townofcary.org
SUBJECT
PROPERTY:
PRESENT ZONING/SETBACKS:
Residential 12 (R-12)
Front: 20’
Rear: 25’
Side (Minimum): 10’
Corner Side: 18’
From Buffer: 10’
REQUEST:
Applicant, JUDITH TILLEY STEWART, is also the
owner of the property which consists
of a single family residence at above-stated address.
Applicant is requesting an eight (8) foot variance into the twenty-five
(25) foot rear yard setback which is required.
Applicant has requested this variance in order to enclose an existing
deck, thereby creating a patio room addition.
QUASI-JUDICIAL
HEARING
This
quasi-judicial hearing considers an application for a variance. It requires an
evidentiary hearing on the application, which will be heard by the Zoning Board
of Adjustment acting as a quasi-judicial board. The purpose of the hearing is to
enable the Zoning Board of Adjustment to gather legally acceptable evidence in
order to establish sufficient facts to apply the applicable ordinance. No ex
parte contact of the Zoning Board of Adjustment is permitted. This means
that the members of the Zoning Board of Adjustment should not discuss or receive
information about the merits of the case from the parties, or members of the
public, before the hearing. All testimony before the Zoning Board of Adjustment
must be "sworn" testimony. All persons wishing to speak on this matter
must be sworn in. Applicants may elect to be represented by legal counsel. All
persons wishing to speak will be given a reasonable time in which to be heard;
however, groups are encouraged to select a spokesperson to speak for the group
in order to avoid repetitious testimony. All documents provided to the Zoning
Board of Adjustment to consider as evidence should be numbered and copies must
be provided to the board secretary and to the other party. Inflammatory,
irrelevant or repetitious testimony is not permitted.
The
applicant has the burden of producing sufficient substantial, competent and
material evidence for the Zoning Board of Adjustment to conclude that the
standards of the applicable ordinance(s) have been met.
PROCEDURE
FOR THE HEARING
The
procedure for hearing this case is as follows:
-
A staff representative presents a preliminary statement.
-
The applicant is called on to present information in support of the
application, followed by others who wish to speak in support of the application.
-
Persons opposed to the application are invited to speak.
-
Both sides are permitted to question the other
side.
-
Both sides are permitted to present rebuttals.
-
The hearing is closed.
The
Zoning Board of Adjustment deliberates in order to reach a decision. In the
course of the deliberation, the members of the Zoning Board of Adjustment may
ask questions of the staff, the applicant or others who have testified, but
beyond that, additional comments from the floor will be admitted only at the
discretion of the Chairman.
PORTIONS FROM THE LAND DEVELOPMENT ORDINANCE WHICH ARE
RELEVANT TO THE ISSUANCE OF A VARIANCE:
3.20
VARIANCES
3.20.1 Purpose
and Scope
The
variance process is intended to provide limited relief from the requirements of
this Ordinance 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 this Ordinance.
It is not intended that variances be granted merely to remove inconveniences or
financial burdens that the requirements of this Ordinance may impose on property
owners in general. Rather, it is intended to provide relief where the
requirements of this Ordinance render the 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. State and/or
federal laws or requirements may not be varied by the Town.
3.20.2
Provisions From Which Variances
Are Allowed
Only the
following standards of this Ordinance are eligible for a variance:
(A)
The lot width, setback, height, building coverage, or structure spacing
standards set forth in Chapters 6 and 7;
(B) The buffer width standards set forth in Section 7.2.3 when the Minor Modification procedures in Section 3.19 are unable to address the hardship;
(C)
Any of the off-street parking and loading standards set forth in Section
7.8 when the Minor Modification procedures in Section 3.19 are unable to address
the hardship;
(D)
The setback standards for real estate signs set forth in Section 9.3.2
(R);
(E)
The square footage standards of wall signs set forth in Section 9.3.2(W)
and (X); and
(F)
The requirements for signage in the 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.
(B) In considering the application, the Zoning Board of Adjustment shall
review the application materials, the approval criteria of Section 3.20.5, and
all testimony and
evidence received at the public hearing.
(D) In granting any variance, the Zoning Board of Adjustment may attach such
conditions to the approval as it deems necessary and appropriate to
satisfy the criteria set forth in Section 3.20.5, to reduce or minimize any
injurious effect of such variance upon
other property in the neighborhood, and to ensure compliance with other terms of
this Ordinance.
(G)
Any variance requests associated with properties within the Town Center
District shall be forwarded to the Zoning Board of Adjustment for review and
decision, except that variance requests from the downtown signage standards in
Section 9.6 would first go to the Town Center Review Commission for review and
recommendation.
(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;
(5)
Whether the applicant's predicament can be mitigated through some method
other than a variance.
(C)
If authorized, the variance shall represent the least deviation from the
regulations that will afford relief.
5.
The applicant
would be unable to get a building permit to construct the room addition without
a variance.
6.
The applicant
took part in the required pre-application conference.
TO
DENY:
OPTION
#1
- Undisputed
Facts (Listed Above 1-6) are accepted as such; and
- No special circumstances or conditions exist that are not common to
other similarly situated areas or buildings.
-
There is no practical difficulty that may result from strict compliance
with the Ordinance’s standards.
a.
Whether
there can be any beneficial use of the property without the variance.
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.
c.
Whether
the variance would adversely affect the delivery of public services such as
water and sewer.
d.
Whether the applicant purchased the property with knowledge of the
requirement.
e.
Whether
the applicant’s predicament can be mitigated through some method other than a
variance.)
OR
OPTION
#2
-
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.
( Land Development Ordinance - Section 3.20.1:
The variance process is intended to provide limited relief from the
requirements of this Ordinance 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 this
Ordinance. It is not intended that variances be granted merely to remove
inconveniences or financial burdens that the requirements of this Ordinance may
impose on property owners in general. Rather, it is intended to provide relief
where the requirements of this Ordinance render the 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. State
and/or federal laws or requirements may not be varied by the Town.)
OR
OPTION
#3
-
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.
OPTION
#4
-
Undisputed Facts (Listed Above
1-6) are adopted as such; AND
(Land
Development Ordinance 3.20.5: The
Board may approve the variance only if it finds that ALL of the following
criteria have been met.)
-
Special circumstances or conditions exist that are not common to
similarly situated areas or buildings;
AND
(The Board
must
consider the following approval criteria set forth in Section 3.20.5 of the
Land Development Ordinance in determining “practical difficulty”:
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.
d.
Whether
the applicant purchased the property with knowledge of the requirement.
e.
Whether
the applicant’s predicament can be mitigated through some method other than a
variance.);
AND
-
The variance shall represent the least deviation from the regulations
that will afford relief.
The Board shall adopt
each statement listed above under Option #1 TO GRANT WITHOUT CONDITIONS, AND in
addition, the Board attaches such conditions that it deems necessary and
appropriate to satisfy the criteria set forth in Section 3.20.5 of the Land
Development Ordinance, to reduce or minimize any injurious effect of such
variance upon other property in the neighborhood, and to ensure compliance with
other terms of the Ordinance.
PRELIMINARY
STATEMENT
After conducting a duly advertised public hearing,
considering and reviewing the application materials, the evidence submitted, the
comments of the general public, the sworn testimony at the public hearing, and
the approval criteria of Section 3.20.5 of the LDO, we find the following:
FINDINGS OF FACTS
1.
2.
3.
CONCLUSIONS OF LAW
