The Board of Adjustment is a group of members that are appointed by a local government, such as a City or Town, pursuant to NCGS 160D-302, to “hear and decide all matters upon which it is required to pass under any statute or development regulation adopted under this Chapter.” So what in the world does that mean? Typically a Board of Adjustment hears appeals, variance requests, or requests for special use permits as required under state statute and any local development ordinance. The Board is appropriately named as, when you think about it, they can adjust from the strict application of a development ordinance if sufficient reason to do so is found.
The Board of Adjustment hears quasi-judicial matters. This means the Board essentially serves a similar function as a judge in a court proceeding. The Board will make findings of fact and will render a decision based on the application of existing laws and procedure. Similar to a court proceeding, evidence is given, testimony may be taken, and those presenting such evidence and testimony are placed under oath. Appeals from Board of Adjustment decisions are to a North Carolina Superior Court.
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.
As you can see, having a variance request approved is not a given. They are not handed out simply because an owner does not want to comply with the particular zoning regulation in place. There has to be a demonstrated need and sufficient evidence must be found that a variance is warranted given the particulars of a property and the request made.
Special Use Permits:
Special Use Permits are pretty much what they sound like. They are permits to allow a type of land use that may not necessarily be allowed in a particular zoning district. As with a variance, there are standards that must be met to secure a Special Use Permit.
For example, in Greensboro, an applicant must show that:
- the proposed use will not be detrimental to the health or safety of persons residing or working in the vicinity or injurious to property or improvements in the vicinity;
- that the proposed use at the particular location provides a service or facility that will contribute to the general well-being of the community; and
- that the location and character of the proposed use will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Plan
Often it can be helpful to have legal representation when presenting an application to the Board of Adjustment. Attorney Adam J. Marshall has served on both the Greensboro Board of Adjustment as well as the Greensboro Zoning Commission and is familiar with the complicated issues that can accompany these applications. If you need assistance regarding these issues, please reach out to the attorneys at Law Firm Carolinas.