TOWN OF CARY
Zoning Board of Adjustment Hearing
 September 11, 2006  

VARIANCE WORKSHEET

IN THE MATTER OF:                            CASE NO. 06-V-002

TOWN OF CARY                                                                                                          

 STATE OF NORTH CAROLINA

APPLICANT/PROPERTY OWNER:       Jose L. Kofman and Tracy Richards                                                                                                                                                                                                                                                            STAFF CONTACT/PRESENTER:          
Jennifer Currin 
Town of Cary
Planner II
(919) 469-4342
e-mail: jennifer.currin@townofcary.org

SUBJECT PROPERTY:                        105 Canberra Court, Cary, NC  27513

PRESENT ZONING/SETBACKS:          
Residential 8 (R-8)
Front: 30’
Rear: 30’
Side: 15’
Side St. : 25’

VICINITY MAP

REQUEST:      The applicants, JOSE L. KOFMAN and TRACY RICHARDS, are also the owners of the property which consists of a detached single family residence at above-stated address.  The applicants are requesting a variance to encroach 1.9 feet into the required fifteen (15) foot side yard setback.  The applicants have requested this variance to make the detached single family dwelling unit a legal structure. The encroachment would be as shown on the attached survey.

The variance process is intended to provide limited relief from the Land Development Ordinance (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. Variances are not intended, and should not be used, to remove inconveniences or financial burdens that the requirements of the LDO may impose on property owners in general. Instead, a variance is intended to be used to provide relief where the requirements of the LDO render land difficult or impossible to use because of some unique physical attribute or the property itself or some other factor unique to the property for which the variance is requested. Neither state nor federal law requirements may be varied by the Town. [3.20.1]

Only the following standards are eligible for a variance [3.20.2]:

The Board may not grant a variance to allow a use expressly or by implication prohibited under the LDO for the zone 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 the 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 the LDO standards, provided that the requested variance will not have the effect of nullifying or impairing the intent and purposes of either the specific standards, the LDO, or the Comprehensive Plan. In determining “practical difficulty”, the Board shall consider the following factors:

    1. Where 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 the 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.

FINDINGS

UNDISPUTED FACTS:

1. The application for a variance was filed by all the owners for the land affected by the variance;

Or  

The applicant is an agent, lessee, or contract purchaser specifically authorized by all of the property owners to file the application;

 Or

The applicant is a unit of government that proposes to acquire a lot by purchase, gift or condemnation

2. The applicant took part in the pre-application conference required by 3.20.3 (B).

3. The property is described as follows:

Site Address: 105 Canberra Court , Cary , NC 27513
PIN # 0765526793       
Lot #23       
Subdivision: Harrison Place        
Total lot/tract size: 0.61 acres      
Existing Zoning District: Residential-8 (R-8)

4. The property is not located in a Planned Development District (PDD).

5. The property is improved with a detached single-family dwelling unit.

6. The variance requested is to encroach 1.9 feet into the required 15-foot side yard setback.

7. Minor Modification procedures were unable to address the hardship.

8. Homeowner’s Association approval has been obtained and a copy is attached.

9. There are no written zoning conditions or conditions that are part of a special use permit, a PDD approval, or
    subdivision or site plan approval that will be varied by this request.

10. A sketch of the variance requested is attached.

If you are inclined to DENY the variance request, follow this route. (You need only find ONE of the following.)

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

OR

12.  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.

                 Applicants’ Finding:

                 Staff’s 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. 

                 Applicants’ Finding:

                 Staff’s Finding:

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

                 Applicants’ Finding:

                 Staff’s Finding:

           d.   Whether the applicant purchased the property with knowledge of the requirement, and;

                 Applicants’ Finding:

                 Staff’s Finding:

           e.   Whether the applicant’s predicament can be mitigated through some method other than a variance.

                 Applicants’ Finding:

                 Staff’s Finding:


OR

13.  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. 

Applicants’ Finding:

Staff’s Finding:


OR

14.  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. 

Applicants’ Finding:

Staff’s Finding:

OR

15.  The variance does not represent the least deviation from the regulations that will afford relief. 

Applicants’ Finding:

Staff’s Finding:

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

11.  Special circumstances or conditions exist that are not common to similarly situated areas or buildings.

            Staff’s Finding:

AND

12.  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.

      Applicants’ Finding: Yes, but further beneficial use cannot be had without Board of Adjustment’s variance. A house has been built upon the property since 1989; it was, of course, illegally positioned on the lot.

     Staff’s Finding: Since the lot is developed with a single family dwelling, there is beneficial use of the property. However, the house is an illegal structure since it does not comply with the setback requirements.  

 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. 

      Applicants’ Finding: The community already has numerous incidents of similar   violations. Some of those have been previously “waived” on record by the developer and this applicant is not aware of any circumstances where the setback has been enforced.

      Staff’s Finding: No changes are proposed to the existing structure. The house is existing and has not met the required setbacks on the recorded plat since it was erected. The current side setbacks in a Residential 8 (R-8) zoning district are 10’. The recorded plat exceeds the current minimum setbacks required. The character of the neighborhood would not be substantially altered and the adjoining property owners would not 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.

      Applicants’ Finding: No.

      Staff’s Finding: The variance would not adversely affect the delivery of public services such as water and sewer.

d.    Whether the applicant purchased the property with knowledge of the requirement.

      Applicants’ Finding: Yes. Purchase of this property was conditioned on the successful pursuit of this variance. Contract remedies do not adequately address the owners’ inability to comply with the Town of Cary LDO ; only the Town can do so.

      Staff’s Finding:

 

e.   Whether the applicants’ predicament cannot be mitigated through some method other than a variance.

      Applicants’ Finding: No. We are aware of no other method of satisfactorily mitigating this setback violation. It has already been “waived” by the Home Owners’ Association.

      Staff’s Finding: The applicant cannot correct the procedure through the Minor Modification process.  

AND

13. 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. 

Applicants’ Finding:

Staff’s Finding: The intent of the LDO will be met since the variance requested will not reduce the side setback below the current minimum requirements. If the variance is granted, the side setback will be 13.1 feet for 105 Canberra Ct.The LDO requires a minimum 10 feet side setback.

AND

14. 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. 

Applicants’ Finding:

Staff’s Finding: The house was built prior to foundation surveys being required. There is no regulation that can be created to alleviate the predicament. This is a situation where the house was built and does not conform to the required setbacks, therefore making the structure illegal.

 AND

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

Applicants’ Finding:

Staff’s Finding: The existing house encroaches 1.9 feet into the side setback. The variance requested is only for 1.9 feet. The house will still be illegal if the variance for 1.9 feet is denied.

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:  

 a fence being constructed _______________

 a buffer to be installed __________________

 other________________________________



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, I move that we grant the variance as described in _________ with/without conditions for the following reasons:

RESOLUTION

1. Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board finds proposed findings 1-10 and 11-15 and 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 to construct a __________ to be located _______________________________________.

3. This variance is conditioned upon:

  a fence being constructed _______________

  a buffer to be installed __________________

  other________________________________  

MOTION TO DENY VARIANCE

After conducting a duly advertised public hearing and reviewing the application materials, testimony and evidence, and the approval criteria of Section 3.20.5, I move that we deny the variance for the following reasons:

RESOLUTION

Based on the application, testimony and evidence, the general purposes of the LDO, and the above findings, the Board finds proposed findings 1-10 and 11-15 and 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.