Last year I wrote a blog discussing the role of a Board of Adjustment and the types of cases they may hear, which can be found here. One of the land use cases that the Board of Adjustment in a municipality would see regularly would be a request for a variance. Variances are covered under NCGS § 160D of the North Carolina General Statues. Specifically:
NCGS 160D-705(d) states: When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the board of adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:
- Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
- The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
- The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship.
- The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
In general terms, a variance is requested when the strict application of a local ordinance would create an unnecessary hardship on the applicant. The Board of adjustment is going to be charged with determining whether a variance should be granted, after hearing applicable testimony, based on the factors illustrated above.
So what are some examples of cases where there might be the need for a variance? An owner might be trying to close in a deck or convert a deck into a sunroom addition only to determine that the deck is out of compliance with local requirements. A parcel of land might be an odd shape (not the typical square or rectangle shaped lot) and application of the local setback rules may limit where an owner can build an addition on their property. The setback example is a good illustration of prong two (2) noted above. It is a condition that is peculiar to a certain piece of property.
I have served as Chair of the Greensboro Zoning Commission and have also served on the City’s Board of Adjustment. If you find yourself in possible need of a variance please reach out to the land use and zoning section of Law Firm Carolinas.