ZONING BOARD OF ADJUSTMENT HEARING
OCTOBER 8, 2007
VARIANCE WORKSHEET
IN THE MATTER OF: CASE NO. 07-V-03
TOWN OF CARY
STATE OF NORTH CAROLINA
APPLICANT
NAME(S) (Landowner or Landowner’s agent, lessee or contract purchaser
specifically authorized by Landowner in a sworn writing) AND ADDRESS OF SUBJECT
PROPERTY:
Jason and Amy Brown
317 Powers Ferry Road
Cary,
NC
27519
LANDOWNER NAME(S)/ADDRESS (if different from above):
N/A
STAFF REPRESENTATIVE:
Jennifer Currin, Planner II
phone: (919) 469-4342
e-mail: jennifer.currin@townofcary.org
PRESENT
ZONING/SETBACKS:
Zoning: Planned Development District (PDD)
PDD
Equivalent Zoning: Residential-8 (R-8)
Front (Collector Road): 20’
Front
(Other Roads): 20’
Rear: 20’
Side: 5’ Minimum/15’ Aggregate
Corner Side Yard (From Right-of-Way): 13’
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]
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)].
Only the following standards are eligible for a variance [3.20.2]
REQUEST: A variance from Section 7.2.7 (B) of the LDO to permit a wall or fence up to 12' in height in a rear setback. (Also see sworn application attached.)
UNDISPUTED FACTS
1. The Application was filed by all of the owners of the land for which a variance is sought.
2. The Applicant took part in the pre-application conference required by Section 3.20.3(B).
3.
The Property is:
Site Address: 317 Powers Ferry Road
PIN
#: 0724579501 Lot
#: 64
Subdivision:
Weldon Ridge
Total lot/tract size:
0.33 acres
Existing Zoning District: Planned
Development District (PDD)
PDD
Equivalent Zoning: Residential-8 (R-8)
4. The Property is in a Planned Development District (PDD).
5. The property is improved. If it is improved, the improvement is: single family detached residence.
6. Minor modification procedures were unable to address the hardship.
7. Homeowner’s Association approval is required. A copy of such approval is attached.
8. There are not written zoning conditions or conditions that are part of a special use permit, a PDD approval or a subdivision or site plan approval that will be varied by this request
9. The variance requested is a variance from Section 7.2.7 (B) of the LDO to permit a wall or fence up to 12' in height in a rear setback. A copy of a sketch of the proposed variance is attached.
The Board May Approve the Variance ONLY if it Finds that ALL of the Criteria Below (as Set Forth in LDO Section 3.20.5) Have Been Met.
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
Proposed
finding in support of variance: There are topographic issues that
exist on this
parcel. There is approximately 36’ from the furthest point of the
principal structure to where the slope begins. The grade changes approximately
13’ over 25.5 feet, which is about a 2:1 slope. Within Weldon Ridge, there are
only a few other lots affected by the topography change to this degree, which
were adjacent to the parcel in this request. This change in slope is not common
to most of the parcels within the Weldon Ridge subdivision.
Proposed finding denying variance:
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 Zoning Board of Adjustment shall consider the following factors:
(1) Whether there can be any beneficial use of the property without the variance;
Proposed finding in support of variance: There is a detached single family dwelling unit which exists on the parcel. However, about 25.5’ of the 62.5’ total length of the backyard has approximately a 2:1 change in grade. The topography on this parcel prohibits any use of the property where the slope occurs.
Proposed finding denying 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;
Proposed finding in support of
variance: The
essential character of the neighborhood would not be substantially altered and
the adjoining properties would not suffer a substantial detriment as a result of
the variance. Behind this parcel are wetlands and 2 Best Management Practices (BMPs).
The retaining wall would assist in reducing the erosion that is occurring on
this parcel. Currently, the LDO permits a wall up to 8’ in height to be
located in a setback. The variance
requested will not substantially alter the essential character of the
neighborhood since a wall up to 8’ feet is already permissible.
If the variance is granted to permit a retaining wall, the setback
requirements for the principal structure would still be required. Therefore,
there would be no further impact on the properties adjacent to this parcel.
Proposed finding denying variance:
(3) Whether the variance would adversely affect the delivery of public services such as water and sewer;
Proposed finding in support of variance: The existing dwelling unit is served by water and sewer. The variance would not adversely affect the delivery of public services, such as water and sewer.
Proposed finding denying variance:
(4) Whether the applicant purchased the property with knowledge of the requirement; and
Proposed finding in support of variance:
The applicant indicated on the sworn application that when they went under
contact to purchase the property, the applicant was not aware that the sloped
portion of the lot was included in the lot they had under contract.
Proposed finding denying variance:
(5) Whether the applicant's predicament can be mitigated through some method other than a variance.
Proposed finding in support of variance:
According to LDO Section 7.2.7(B), the height of a fence or wall within a
setback cannot be exceeded unless specifically approved as part of a buffer
under Section 7.2.3, or approved by the Town Council as part of a site plan,
preliminary subdivision plat or Special Use Permit, or approved by the Zoning
Board of Adjustment as part of a variance. Since the subdivision plan has
already been approved, the lots have already been platted and recorded, the
applicant chose to apply for a variance through the Zoning Board of Adjustment.
The LDO does not provide for any other mechanism, other than the one described
above, to approve of a wall in a rear setback to exceed 8 ft. in height.
Proposed finding denying 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.
If
you are inclined to GRANT the variance
request:
PROPOSED MOTION TO ADOPT RESOLUTION GRANTING VARIANCE
After conducting a duly advertised hearing and reviewing the application materials, testimony and evidence, and considering the approval criteria, I MOVE that we approve the variance request and adopt the Proposed Resolution Granting Variance with the following particular findings and conditions:
TOWN
OF CARY
APPLICATION # 07-V-03
STATE
OF NORTH CAROLINA
The Board
of Adjustment for the Town of Cary, having held a hearing on October 8, 2007 to
consider the above referenced application for a variance for Property with PIN #
0724579501, and having heard all of the evidence presented in the application
materials and at the hearing in light of the criteria for a variance, makes the
following FINDINGS OF FACT and CONCLUSIONS.
IT IS THE BOARD’S CONCLUSION THAT:
1. Undisputed facts #s 1 - ___ are found. (or are found with the following changes:____.)
AND
3. Practical difficulties result from the unique circumstances or conditions. We have made this determination because:
· There can be no beneficial use of Property without the variance, because ____________________________________________; AND
· the essential character of the neighborhood will not be substantially altered and adjoining properties will not suffer a substantial detriment if the variance is granted because _____________________________________; AND
· The variance will not adversely affect the delivery of public services such as water and sewer, because ____________________________; AND
· The applicant did not purchase the property with knowledge of the requirement because ________________________________________; AND
· The applicant's predicament can not be mitigated through some method other than a variance because ____________________________________.
4. That granting the Variance will not have the effect of nullifying or impairing the intent and purposes of the LDO or the Comprehensive Plan;
THEREFORE, on the basis of all of the foregoing, IT IS RESOLVED that the application for a VARIANCE described in the applicant documentation and in the staff worksheet is GRANTED, [subject to the following reasonable conditions necessary to achieve the purposes of the LDO.]
CONDITIONS: [examples]
If the variance application was a prerequisite to site plan and/or subdivision approval, failure of the Applicant to apply for a building permit and commence construction or action with regard to the variance approval within one year of this Resolution approving variance shall render this Resolution null and void.
Resolved this _____ day of
____________________, 20__.
If you are inclined to DENY the variance request:
After conducting a duly advertised hearing and reviewing the application materials, testimony and evidence, and considering the approval criteria, I move that we deny the variance request and adopt the Proposed Resolution Denying Variance with the following particular findings and conditions:
TOWN OF CARY APPLICATION # 07-V-03
STATE OF NORTH CAROLINA
RESOLUTION DENYING VARIANCE
The Board of Adjustment for the Town of Cary, having held a hearing on October 8, 2007 to consider the above referenced application for a variance for Property with PIN # 0724579501, and having heard all of the evidence presented in the application materials and at the hearing in light of the criteria for a variance, makes the following FINDINGS OF FACT and CONCLUSIONS.
IT IS THE BOARD’S CONCLUSION THAT:
1. Undisputed facts #s 1 - ___ are found. (or are found with the following changes ______.)
2. No special circumstances or conditions exist on the Property that that are uncommon to other similarly situated properties because _________ (Examples: the Property is no more narrow than other properties, the property has a standard shape, there are no exceptional topographic conditions
AND/OR
3. There are no practical difficulties that result from the unique circumstances or conditions. We have made this determination because:
· There can be a beneficial use of Property without the variance, because ____________________________________________; AND
· the essential character of the neighborhood will be substantially altered and adjoining properties will suffer a substantial detriment if the variance is granted because _____________________________________; AND
· The variance will adversely affect the delivery of public services such as water and sewer, because ____________________________; AND
· The applicant did purchase the property with knowledge of the requirement because ________________________________________; AND
· The applicant's predicament can be mitigated through some method other than a variance because ____________________________________.
OR
4. Granting the Variance will have the effect of nullifying or impairing the intent and purposes of the LDO or the Comprehensive Plan;
THEREFORE, on the basis of all of the foregoing, IT IS RESOLVED that the application for a VARIANCE described within the application documentation and staff worksheet is DENIED.
Resolved this _____ day of ______, 20__.
The Board of Adjustment for the Town of Cary, having held a hearing on October 8, 2007 to consider the above referenced application for a variance to the height of a wall or fence within the rear setback, which will not exceed 12’ in height, at property with PIN # 0724579501, and having heard all of the evidence presented at the hearing in light of the criteria for a variance, makes the following FINDINGS OF FACT and CONCLUSIONS.
IT IS THE BOARD’S CONCLUSION THAT:
1. The Subject Property is _____________________________.
2. The uses of the Subject Property available to the landowner are __________________________
3. Unique circumstances or conditions do/do not exist on the Subject Property that are/are not common to other properties because _________________________________________.
AND/OR
4. Practical difficulties do/do not result from any unique circumstances or conditions. We have made this determination because:
[choose at least one of the following]
·
There can/cannot
be a beneficial use of Property without the variance, because
____________________________________________;
AND/OR
·
the essential
character of the neighborhood will/will not be substantially altered and
adjoining properties will not suffer a substantial detriment if the variance is
granted because _____________________________________; AND/OR
·
The variance
will/will not adversely affect the delivery of public services such as water and
sewer, because ____________________________; AND/OR
·
The applicant
did/did not purchase the property with knowledge of the requirement because
________________________________________; AND/OR
·
The applicant's
predicament can/cannot be mitigated through some method other than a variance
because ____________________________________.
OR
5. That granting the Variance will/will not have the effect of nullifying or impairing the intent and purposes of the LDO or the Comprehensive Plan;
THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE be GRANTED/DENIED.
Ordered this __ day of ________________________, 20__.
