More Details on Seeking North Carolina Zoning Variances

Zoning is a local matter. As such, seeking a zoning variance is a matter to be brought before a local board empowered to adjudicate requests for variances. These agencies might have different names depending on the county or municipality like a Board of Adjustments, a Variance Board, or a Planning Board. A "variance" is a request that a particular zoning requirement be varied; that is, apply differently for the property owner seeking the variance.

The process and procedure for seeking a zoning variance will depend on the local rules. But, in general, the process involves the following:

• Meet the local planning staff and obtain the proper local variance forms -- seeking a zoning variance requires completing various forms and supplying supporting documentation; this is often called a "Variance Packet;" typically, an applicant meets with the planning staff to discuss the variance; there will be deadlines and a public Board meeting scheduled -- see example from the Town of Huntersville, NC here
• Complete the Variance Application and pay the fee -- this officially starts the process; the application provides the Board with information on who is seeking the variance, where the property is located, what the variance is, why it is sought, etc.; various documents must be attached like a survey of the property, building and structure plans, photos, descriptions and the like
• Wait while the Board's staff investigates and prepares a report/recommendation -- the staff of the Board will usually do a site visit and will review the application; generally, a report is prepared (and, often, a recommendation is made) by the staff for the Board
• Public hearing scheduled and neighbors informed -- a public hearing is required by North Carolina statute; a Notice of the hearing is required to be sent to adjacent property owners
• Attend public hearing -- at the hearing, the landowner seeking the variance must attend to answer any questions; neighbors also have the opportunity to be heard
• Board makes a decision and issues findings -- findings are required by North Carolina statute which must identify the reasons and factors that led the Board to approve or deny the variance

Whether the variance is granted or denied, the Board's decision can be appealed. Often, the first round of appeal goes to the local city council and then to the local Superior Court. Neighbors and various other third parties have standing to seek reversal of an approval and the landowner can seek to overturn a variance denial. If granted, a zoning variance "runs with the land" which means any subsequent owner can rely on the variance having been granted.

Generally speaking, a landowner is entitled to a zoning variance if the landowner can show that "unnecessary hardships" will result from enforcing the strict letter of the zoning ordinance. More specifically, per North Carolina statute, zoning variances are granted when the following conditions are met:

• Unnecessary hardship would result from the strict application of the ordinance. It shall not be 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.
• 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 shall not be regarded as a self-created hardship.
• The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.

A four-fifths vote of the Board is required for approval.

In general, "unnecessary hardship" is not deemed to exist where the applicant has suffered or will suffer only a monetary loss. That is a factor to be considered, but, generally, something more is required. As an example, in one North Carolina reported decision, the courts overturned an approved variance because the only justification was that the landowner would have to spend money to relocate a concrete slab to comply with a zoning setoff ordinance.

For more information, and to schedule a confidential consultation with experienced and dedicated property law attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman and Union County.