ZONING BOARD OF ADJUSTMENT HEARING
CASE NO. 07-V-02
APRIL 9, 2007
VARIANCE WORKSHEET
IN
THE MATTER OF:
TOWN OF
STATE OF NORTH CAROLINA
APPLICANT NAME(S) AND ADDRESS OF SUBJECT PROPERTY:
Charles V. and Debra
D. Ward
PROPERTY OWNER NAME(S)/ADDRESS (if
different from above):
n/a
STAFF REPRESENTATIVE:
Lawrence Hardee, Zoning Compliance Supervisor
phone: (919) 462-3885
e-mail: lawrence.hardee@townofcary.org
PRESENT ZONING/SETBACKS:
Zoning:
PDD (PDD Equivalent R-12)
Front:
25’
Rear:
20’
Side:
Min. 10’ Aggregate 15’
Side
VICINITY MAP
REQUEST:
The applicants, Charles V. Ward and Debra D.
Ward, are also the owners of the property which consist of a detached single
family residence at the above stated address.
The applicants are requesting a variance to encroach 14’ into a 15’
required Buffer setback. 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)].
BACKGROUND:
The house located at
UNDISPUTED
FACTS:
1.
The application for a variance was filed by all the owners
for the land affected by the variance;
2. The applicant took
part in the pre-application conference required by LDO Section 3.20.3 (B).
3. The property is
described as follows:
Site Address:
PIN:
# 0743868625
Subdivision: Avalon
II
Total lot/tract size: .32 acres
Existing Zoning District: PDD
with R12 equivalent
4. The property is
located in a Planned Development District (PDD).
5. The property is
improved with a detached single-family dwelling unit.
6. The variance
requested is 14’ into a required 15’ Buffer set back, which has been in
existence since 1995. The property is currently an illegal structure and will
continue to be so without a variance. The applicants/owners will not be eligible
for a permit required prior to correcting the existing code violations without
the variance.
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 Survey of the variance
requested is attached.
The Board May Approve the Variance ONLY
if it Finds that ALL of the Criteria Below
Have Been Met [Section 3.20.5 of Town of
3.20.5 Approval Criteria
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; and
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; and
3.
Whether the variance would adversely affect the delivery of public
services such as water and sewer; and
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.
Therefore, 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.
Applicants’ Position: Property
built prior to buffer requirements, previous owner failed to get proper permits
to build the addition, I simply seek a variance to bring the addition into code.
Staff’s Position: There
are 10 out of 86 total lots in the Avalon II Subdivision that back up to
12.
Practical Difficulty may result from strict compliance with the
Ordinance’s standards.
(The Board must consider the following to determine if there a Practical Difficulty may result.)
a. Whether there can be any beneficial use of the property without the variance.
Applicants’ Position: If I fail to get improvements made with variance, damage will result to existing structure and civil liability would result from my selling this property.
Staff’s Position: 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’ Position: No
Staff’s Position: 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 built. 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’ Position:
No.
Staff’s Position: 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’ Position: No
Staff’s Position: The property owners did not know about the setback problem until they came in to get a building permit to correct the building code violation for an addition that had been built without a permit.
e.
Whether the applicants’ predicament cannot be mitigated
through some method other than a
variance.
Applicants’ Position: No
Staff’s Position: The
applicant cannot get approval of their building permit with out the variance
being granted.
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’ Position: None
Staff’s Position:
Since the encroachment is in the
rear of the house and is between the house and a 50’ buffer that runs parallel
to
AND
Applicants’ Position: None
Staff’s Position: The
house was built prior to foundation surveys being required by the Town.
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 it an illegal structure.
AND
15. The variance shall represent the least deviation from the regulations that will afford relief.
Applicants’ Position: None
Staff’s Position: The
existing house encroaches 14’ into the 15’ required buffer setback.
The house will still be illegal if the variance is denied.
a.
b.
c.
If
you are inclined to DENY the variance
request, follow this route (You need only find ONE
of the following):
16. No special circumstances or conditions exist that are not common to other similarly situated areas or buildings.
OR
17. There is no practical difficulty that may result from strict compliance with the Ordinance’s standards (The Board must consider the following to determine if there a Practical Difficulty may result).
a. Whether there can be any beneficial use of the property without the variance.
Applicants’ Position:
Staff’s Position:
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’ Position:
Staff’s Position:
c. Whether the variance would adversely affect the delivery of public services such as water and sewer.
Applicants’ Position:
Staff’s
Position:
d.
Whether the applicant purchased the property with knowledge
of the requirement, and;
Applicants’ Position:
Staff’s Position:
e.
Whether the applicant’s
predicament can be mitigated through some method other than a variance.
Applicants’ Position:
Staff’s Position:
OR
18. 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 LDO is to provide relief to a property owner who has a parcel whose physical characteristics make development impossible or nearly so.
Applicants’ Position:
Staff’s
Position:
OR
Applicants’ Position:
Staff’s
Position:
Applicants’ Position:
Staff’s
Position:
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
_________
with/without conditions 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 meets each of the approval criteria set forth for a variance in Section 3.20.5 of the Town of Cary LDO.
2. The applicant is hereby granted a variance to
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 request 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 Town of Cary LDO, and the application is
DENIED.
