6.1-1.

Purpose. The variance process administered by the board of adjustment is intended to provide limited relief from the requirements of this ordinance 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 this ordinance. It is not intended that variances be granted merely to remove inconveniences or financial burdens that the requirements of this ordinance may impose on property owners in general or to increase the profitability of a proposed development. Rather, it is intended to provide relief where the requirements of this Code render the land difficult or impossible to use because of some unique physical attribute of the property itself or some other factor unique to the property for which the variance is requested.

6.1-2.

Provisions That May Not Be Varied By the Board of Adjustment. In no event shall the board of adjustment grant a variance:

(A)

With respect to any special use permit or conditional zoning district ordinance adopted pursuant to this ordinance.

(B)

Which would modify, alter, change, or suspend the special standards and/or conditions set forth in Article 10 of this ordinance for a use with additional standards or a special use.

(C)

To the flood protection provisions within a designated floodway district that would result in any increase in the flood levels during the regulatory flood discharge.

(D)

Which would permit a use or density not otherwise permitted in the district in which the property is located.

(E)

Which would permit a non-conforming use of land, buildings, or structures.

(F)

Which would permit the creation of a non-conforming lot except that the Board may grant a variance permitting a reduction in the lot area and dimensional standards, for an individual lot located in residential districts, provided that the variance does not permit a reduction of greater than ten percent in the required lot area and dimensional standards. Provided further, applications for such variance for additional lot(s) under common ownership shall not be submitted within three years of submittal of the previous application, regardless of the decision of the board on the previous application.

(G)

Which would conflict with the North Carolina State Building Code, the North Carolina Fire Prevention Code, or any other state codes unless otherwise authorized by laws and regulations.

6.1-3.

Application. The following process shall be followed in applying for a variance:

(A)

An application for a variance shall be filed only by the owner of the land affected by the variance or an agent specifically authorized in writing by the owner to file such application.

(B)

Before filing the application, the applicant shall meet with the planning director to discuss the proposed variance and to become more familiar with the applicable requirements and the variance process.

(C)

An application for a variance shall be filed with the planning director on a form provided by the director and contain the information and plans required on the application form.

(D)

The application shall be accompanied by a fee as required by the Town of Jamestown.

(E)

Once the application is accepted as complete by the planning director, the request shall be scheduled for consideration at an evidentiary hearing by the board of adjustment.

6.1-4.

Action by the Board of Adjustment. The following action shall be taken by the board of adjustment upon receipt of the completed application:

(A)

The board shall hold an evidentiary hearing on the requested variance. At least ten, but no more than 25, days before the date of the hearing the Town shall mail written notice of the hearing to all parties in interest and to the owners, as shown on the county tax listing, of abutting property and any other property located within 500 feet of the property in question. A prominent notice of the hearing shall also be posted on the subject property, or on an adjacent street or highway right-of-way, within the same time period as given for mailed notices. A notice also shall be published in the local paper and posted on the Town's website within the aforementioned timeframe.

(B)

In considering the application, the board of adjustment shall review the application materials, the staff recommendation, the general purpose and standards set forth in this article for the granting of variances, and all testimony and evidence received by the board at the public hearing.

(C)

After conducting the evidentiary hearing, the board of adjustment may:

1.

Deny the request;

2.

Conduct an additional hearing on the request; or

3.

Grant the request. The concurring vote of four-fifths of the members of the board of adjustment shall be necessary to grant a variance. Any approval or denial of the request shall be accompanied by written findings that the variance meets or does not meet each of the standards set forth in subsection 6.1-6 below or, for flood protection regulation variances, as set forth in Article 18 of this ordinance.

6.1-5.

Conditions appropriate conditions, which must be reasonably related to the condition or circumstance that results in the need for the variance, may be attached to any approval granted by the board of adjustment.

6.1-6.

Standards of Review. The board of adjustment shall not grant a variance until it makes the following affirmative findings:

(A)

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.

(B)

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.

(C)

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.

(D)

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.

6.1-7.

Effect of Approval or Denial. Following the decision of the board of adjustment, the following actions may be taken:

(A)

After the board of adjustment approves a variance, the applicant shall follow all appropriate procedures set forth in this ordinance for the receipt of permits, certificates, and other approvals necessary in order to proceed with development.

(B)

After the denial of the variance request, the applicant may make application for a rehearing in accordance with board of adjustment's rules of procedure.

6.1-8.

Duration. The variance may be issued for a limited duration only. Unless otherwise specified, construction or operation shall be commenced within 24 months of the date of issuance of a variance, or the variance shall become void.

6.1-9.

Appeals. An appeal from any decision of the board of adjustment may be made by an aggrieved party and shall be made to the Superior Court of Guilford County in the nature of certiorari. Any such petition to the superior court shall be filed no later than 30 days after a written copy of the decision of the board of adjustment is received by the applicant.

6.2-1.

Purpose. Appeals to the board of adjustment from the decisions of the administrative staff of the Town of Jamestown are permitted as provided for in this section.

6.2-2.

Decisions that may be appealed. Any order, requirement, decision, or determination made by an administrative officer charged with enforcing the provisions of this ordinance may be appealed to the board of adjustment.

6.2-3.

Persons who may file an appeal. Persons with standing to file an appeal shall include the same categories of persons as set forth in G.S. § 160D-1402(c).

6.2-4.

Filing of Appeal.

(A)

The appeal shall be filed with the town clerk on an application form provided by him/her and contain the information as required on the application form.

(B)

The appeal application shall be accompanied by a fee as established by the Town of Jamestown.

(C)

The appeal application shall be filed no later than 30 calendar days following receipt of notice of a final, binding administrative decision per G.S. § 160D-405(d).

(D)

Upon acceptance of the appeal application by the planning director, the appeal shall be scheduled for consideration by the board of adjustment.

(E)

The filing of an appeal shall stay all enforcement actions and the accrual of any fines assessed in relation to the contested action unless the planning director certifies to the board of adjustment that, in his/her opinion, such a stay would cause imminent peril to life and property. In such case, proceedings shall not be stayed except by a restraining order granted by the board of adjustment or by the Superior Court of Guilford County on notice to the administrative official from whom the appeal is taken, with due cause shown.

6.2-5.

Action by the board of adjustment.

(A)

Upon receiving the appeal application, the board of adjustment shall schedule and hold a public hearing on the appeal. At least ten, but no more than 25, days before the date of the hearing the Town shall mail written notice of the hearing to all parties in interest and to the owners, as shown on the county tax listing, of abutting parcels. A notice of the hearing shall be published in a newspaper in general circulation in Jamestown and a notice shall be posted on the subject property (or an adjacent street or highway right-of-way) within the same time period as the required mailed notice. The public hearing shall be conducted in accordance with the rules of procedure of the board of adjustment and in accordance with the North Carolina General Statutes.

(B)

The official who made the decision or took the action being appealed shall be required to attend the hearing and appear as a witness.

(C)

Either at the public hearing or at a subsequent meeting, the board of adjustment shall adopt an order reversing, affirming, or modifying the contested action.

(D)

The board of adjustment shall not reverse or modify the contested action unless it finds that the administrative officer erred in the application or interpretation of the requirements of this ordinance.

(E)

The board of adjustment shall not reverse or modify the contested action unless there is a concurring vote of a majority of the board members.

6.2-6.

Effect of reversal or modification. In the event that the board of adjustment reverses or modifies the contested action, all subsequent actions taken by administrative officers with regard to the subject matter shall be in accordance with the reversal or modification granted by the board of adjustment unless an appeal is taken on the board's decision.

6.2-7.

Appeal from board of adjustment. Any appeal from the decision of the board of adjustment may be made by an aggrieved party and shall be made to the Superior Court of Guilford County in the nature of certiorari. Any such petition to the superior court shall be filed no later than 30 days after a written copy of the decision of the board of adjustment is received by the applicant.