A variance is a reasonable deviation from those provisions regulating the size or area of a lot or parcel of land or the size, area, bulk or location of a building or structure when the strict application of this Ordinance would result in unnecessary or unreasonable hardship to the property owners and such need for a variance would not be shared generally by other properties, and provided that such variance is not contrary to the intended spirit and purpose of this Ordinance and would result in substantial justice being done.
The Board of Adjustment may vary certain requirements of this Ordinance, in harmony with the general purpose of these regulations, where special conditions applicable to the property in question would make the strict enforcement of the regulations impractical or result in a hardship in making reasonable use of the property.
As stated per the Unified Development Ordinance, a variance is authorized only for height, area, and size of a structure or size of yards and open spaces.
For what can a variance not be granted?
According to the Unified Development Ordinance, a variance may not be granted to allow the establishment or expansion of a use otherwise prohibited in a zoning district. Also, a variance may not be granted because of the presence of non-conformities in the zoning district or uses in an adjoining zoning district. No variance shall be permitted that would allow a project to exceed the maximum density as to number of dwelling units to the acre in a Zoning District. Additionally, the need for the variance cannot be a result of the owner’s own actions and cannot be for strictly economic reasons.
Can variances be granted in Watershed Districts?
The Board of Adjustment shall not grand a variance of more than ten percent to any requirement relating to the Watershed District (WSPA and WSCA) requirements. All variances granted to Watershed District Requirements shall be reported to the NC Environmental Management Commission by January 1 of each calendar year. The report shall include a description of the variance and the reason the variance was granted.
What if I wanted to establish or expand a use that is prohibited in my zoning district?
In the adoption of the Pender County Unified Development Ordinance, careful consideration was given to the groupings and arrangements of the zoning classifications in accordance with a well considered land use plan. Therefore, there are restrictions on land uses within each zoning district that should be adhered to. If you are thinking about a project or particular use that is not permitted within your zoning classification, generally you have two options as a last resort. You may apply for a rezoning of your property, which is called a Zoning Map Amendment. A map amendment would allow you to rezone your property to a zoning district that permits the use you are seeking. The other option would be to apply for a Zoning Text Amendment to revise the zoning ordinance to permit the use within the zoning district that your property is classified as. If you have a project that you wish to undertake that is not permitted in your zoning classification, it would be beneficial to contact a Planning Department staff member to more specifically discuss your situation.
What is the application process for a variance?
The first step in the application process for a variance is to submit to the Planning and Community Development Department office 45 days prior to the scheduled Board of Adjustment public hearing date a complete variance application. As part of the complete application, it is necessary to include the application fee, a self addressed business envelope for each adjacent property owner and an additional envelope for the applicant/owner and their agent, and fifteen scaled maps that clearly show the required information as outlined on the variance application. The applicant/owner must also submit a detailed letter describing the request and stating why the request is being made, as well as provide other information that is pertinent to the case.
Upon submission of an application, staff will verify the application for completeness. Should the application be deemed incomplete, staff will notify the applicant in order to obtain the missing application items.
Next, staff will review the variance application and prepare a staff report. A legal notice will be prepared and advertised in the Pender Post and the Topsail Voice for the duration of the week prior to the scheduled Board of Adjustment meeting. A public notice sign will be posted on the property and the adjacent property owners will be notified of the variance request and the upcoming public hearing. A copy of the final staff review will be provided to the applicant and/or owner.
The next step in the process is the public hearing at the Board of Adjustment meeting. The Board of Adjustment meets on the third Wednesday of every month at 9:00 AM. In the case of a holiday, emergency, inclement weather, or other special circumstances, the meeting date may be postponed; adequate public notice will be given in these circumstances. At the Board of Adjustment meeting, Planning Staff will present to the Board a summary of the variance request and their staff review. The applicant or an agent must attend the hearing and be prepared to present facts to support their request. Members of the public are welcome to speak at the hearing in regards to the variance request. At the hearing, the Board will consider that:
- There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography that are not applicable to other lands or structures in the same district
- Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the zoning district in which the property is located
- A literal interpretation of the provisions of the zoning ordinance would deprive the applicant of rights commonly enjoyed by other residents of the zoning district in which the property is located
- The requested variance will be in harmony with the purposes and intent of this ordinance and will not be injurious to the neighborhood or to the general welfare
- The special circumstances are not the result of the actions of the applicant
- The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure
In considering the variance request, the Board shall, before making any finding in a specified case, first determine that the proposed variance will not constitute any change in the zone shown on the zoning map and will not impair an adequate supply of light and air to adjacent property, or materially increase the public danger of fire and safety, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, morals, and general welfare.
The Board can approve, approve with conditions, or deny a variance request. Following the Board meeting, the applicant/owner will be mailed a summary of the Board’s decision.
Can the Board of Adjustment’s decision on a variance application be appealed?
Appeals to the Superior Court may be taken by any person, firm, or corporation aggrieved, or by any officer, department, or board of the county affected by any decision of the Board of Adjustment, provided such appeals shall be taken within thirty days after the decision of the Board of Adjustment is filed in the office of the Zoning Administrator, or after a written copy thereof is delivered to the applicant, whichever is later.
Can a variance be revoked?
After a public hearing has been held and approval granted for a variance, the Board of Adjustment or the Board of Commissioners may reverse any decision without a public hearing upon finding:
- That the approval was obtained by fraud.
- That the use for which such approval was granted is not being executed.
- That the use for which such approval was granted has ceased to exist or has been suspended for six months.
- That the permit granted is being, or recently has been exercised contrary to the terms or conditions of such approval.
- That the permit granted is in violation of an ordinance or statute.
- That the use for which the approval was granted was so exercised as to be detrimental to the public health or safety, or so as to constitute a nuisance.