Middleburg City Zoning Code

VARIANCES

§ 156.120 GENERALLY.

Where applicable in this section, the State Environmental Management Commission is under the North Carolina Department of Natural Resources-Division of Water Quality. For purposes of development that requires a variance for under the minimum watershed management requirements for the low density option (see 15A NCAC 2B), this text is appropriate for this chapter.

(Ord. 39, passed 10-3-2011)

§ 156.121 PURPOSE.

When unnecessary hardships would result from carrying out the strict letter of this zoning code, the Board of Adjustment shall vary any of the provisions of this chapter upon a showing of all of the following:

(A) The unnecessary hardship would result from the strict application of the chapter. It shall not be 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 shall not be regarded as a self-created hardship.

(D) 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.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.122 AUTHORIZED VARIANCES.

The Board of Adjustment is authorized to grant variances to the provisions of this chapter in accordance therewith. No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014)

§ 156.123 APPLICATIONS.

(A) A person requesting a zoning variance must submit a variance application to the Planning and Development Director or his/her designee. Applications shall include the following:

(1) Site plan drawn to an appropriate scale and illustrating property lines, existing or proposed structures, parking areas and other built upon areas, surface water drainage (if applicable), and indicates north point.

(2) Lists name and address of person who prepared the plan.

(3) Lists the date of the plan and date of revisions (if applicable).

(4) A complete and detailed description of the proposed variance.

(5) Any other pertinent information which the applicant feels would be helpful.

(6) For purposes of notification to abutting property owners, the following is required for a variance application:

(a) Location of property;

(b) General description of the request;

(d) Location of meeting;

(e) Notification to be sent to adjoining property owners if applicable and to all other local governments having jurisdiction abutting the property; this notice shall be sent by the Zoning Administrator by first class mail.

(B) Variances.

(1) The applicant has the burden of proving unnecessary hardship. The proof must be compelling and reasons for granting the variance must be substantial. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, personal preferences, or the disapproval of one's neighbors also do not qualify. The hardship that the applicant must prove must be measured against the community's need for strictly enforced regulations that protect its citizens from dangers and damages from development and the long-term risk to owners and occupants of the building.

(2) Variances may be issued for the repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(3) A written report addressing each of the above factors shall be submitted with the application for a variance. Upon consideration of the factors listed above and the purposes of this chapter, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. Conditions for variances include:

(a) Variances may not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.

(b) Variances shall only be issued upon a determination that the variance is the minimum necessary to afford relief.

1. A showing of good and sufficient cause;

2. A determination that failure to grant the variance would result in exceptional hardship; and

3. A determination that the granting of a variance will not result in additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(d) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the requirement and what the variance specifies. Such notification shall be maintained with a record of all variance actions.

(e) The Zoning Administrator shall maintain the records of all appeal actions.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.124 QUASI-JUDICIAL PROCEEDINGS.

Although the Board of Adjustment acts in a quasi-judicial capacity, it is not intended that proceedings before it be conducted as formally as those before courts. Nevertheless, it is necessary that the rules of procedure and evidence set forth in this chapter be followed to protect the interests of the parties and of the public. To this end, the presiding officer or the clerk of the Board may administer oaths to any witnesses and may make any rulings as are necessary to preserve fairness, order, or proper decorum in any matter before the Board of Adjustment. In addition, any member of the Board of Adjustment or any interested party may object to, and the presiding officer may exclude, any evidence or testimony or statement which is so incompetent, irrelevant, immaterial, or unduly repetitious as to fail to reasonably address the issues before the Board of Adjustment.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.125 EVIDENCE AND TESTIMONY.

Any interested party (defined as person(s) affected by the variance application) may be given the opportunity to present evidence or testimony, to cross-examine witnesses, to inspect documents, and to offer evidence or testimony in explanation or rebuttal. A person who is interested in the matter but who does not have a personal stake in the outcome (such as a likely effect on his or her property value) may attend and observe the hearing, but they have no legal right to offer evidence, ask questions, or otherwise directly participate in the matter. The presiding officer (Board of Adjustment Chair or county staff) may determine whether testimony, oral argument, or cross-examination must be limited in duration. Any member of the Board of Adjustment may question any interested party. Persons other than interested parties may make comments. Such comments must be competent, relevant, and material.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014)

§ 156.126 HEARINGS.

(A) The Board of Adjustment must hold a quasi-judicial hearing before taking action on a zoning variance application.

(B) At least 10 working but not more than 25 days before a hearing on a variance, the Planning and Development Director or his/her designee must post notice of the hearing on the affected property and send written notice of the hearing to the applicant, the owner of the affected property, and the owners of all real property adjoining the affected property (as shown on county tax listings current when the application is filed).

(C) If a requested variance would result in the relaxation of any of the North Carolina Department of Natural Resources - Division of Water Quality minimum watershed management requirements (or the Vance County Watershed Protection Ordinance, Chapter 154 of this Code), the Planning and Development Director or his/her designee must, at the same time, send written notice of the hearing to all other local governments having jurisdiction within the same water supply watershed.

(D) On determining that the application would impact non-adjoining properties in the neighborhood of the affected site, the Planning and Development Director or his/her designee may also send written notices to the owners of those properties, and may require the applicant to submit the additional materials necessary to provide such notices.

(E) Notices to the applicant and the owner of the affected site must be sent via mail. All other mailed notices must be sent via first-class mail to those interested parties as applicable.

(F) If the Planning and Development Director or his/her designee determines that an application for a variance would have significant impacts on properties beyond the neighborhood of the affected site, the Planning and Development Director or his/her designee must cause notice of the hearing to be published in a newspaper of general circulation in the county or the area of the affected site. The notice must be published in each of 2 successive calendar weeks, with the first notice being published between 10 and 25 days before the hearing date.

(G) The Planning and Development Director or his/her designee must make every reasonable effort to comply with these notice requirements. However, where the Planning and Development Director or his/her designee has made a reasonable and good-faith attempt to comply with the requirements for notice to owners of adjoining properties, no failure to comply with those requirements must render any decision on the application invalid.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.127 REVIEW AND DECISION.

(A) The decision of the Board of Adjustment must include findings of fact and conclusions of law and must be based upon substantial evidence or testimony that is competent, relevant, and material. Findings concerning the existence or nonexistence of crucial facts must be based upon sworn evidence or testimony unless the party or parties before the Board of Adjustment stipulate the facts or waive this requirement. Every decision of the Board of Adjustment must also include the vote, abstention from voting, or absence of each member.

(1) Appeals for variances shall be filed with the Zoning Administrator, who shall transmit all such records to the Board of Adjustment.

(2) The Board of Adjustment shall fix a reasonable time, not to exceed 30 days, for the hearing of the variance.

(3) The Zoning Administrator shall post a sign on any property for which a variance has been requested. The sign shall state the date, time, and a phone number to call for information on the variance, and shall be posted at least 10 days, but not more than 25 days prior to the hearing date.

(4) The concurring vote of 4/5 of the board shall be necessary to grant a variance.

(5) Each decision of the Board of Adjustment is subject to review by the Vance County Superior Court. Any appeal to the Superior Court shall be taken within 30 days after the decision of the Board of Adjustment is filed in the Office of the Zoning Administrator, or after a written copy of the decision is delivered to the appellant by mail, or personal service, whichever is later.

(B) Additional evidence. Notwithstanding any other provision of this chapter, the Board of Adjustment may require additional evidence, as part of the initial application and hearing process, or memoranda of authority to be submitted, and may reserve its decision until such evidence or memoranda have been submitted and considered.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.128 REQUIRED FINDINGS OF FACT.

(A) A variance may not be granted unless the Board of Adjustment makes findings of fact supporting its conclusions, and concludes, at a minimum, that:

(1) There are special circumstances or conditions applying to the land, building, or use referred to in the application which exists through no fault of the property owner;

(2) The granting of the application is necessary for the preservation and enjoyment of property rights;

(3) The granting of the application will not materially affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use, and will not be materially detrimental to the public welfare or injurious to property or improvement in such neighborhood;

(4) A denial of the application would cause unnecessary hardships to the landowner;

(5) In areas of special flood hazard the Board of Adjustment must additionally conclude that:

(a) No increase in flood levels will result within any designated floodway during the base flood discharge as a result of granting the variance;

(b) A more limited or narrower variance would not provide relief;

(B) NOTE: The Board of Adjustment must make specific findings of fact, based on evidence introduced, on the following issues, and these findings of fact must not be inconsistent with the conclusions concerning variances in areas of special flood hazard:

(1) The danger that materials may be swept onto other lands to the injury of others;

(2) The danger to life and property due to flooding damage;

(3) The susceptibility of the proposed use and its contents to flood damage and the effect of such damage on the individual owner;

(4) The importance of the services provided by the proposed use to the community;

(5) The necessity for the use of a waterfront location, where applicable;

(6) The availability of alternative locations on the same parcel, not subject to flooding damage, for the proposed use;

(7) The compatibility of the proposed use with existing and anticipated development;

(8) The safety of access to the property in times of flood for ordinary and emergency vehicles;

(9) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters, and the effects of wave action, if applicable, expected at the site; and

(10) The cost of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as wastewater, gas, electrical, and water systems, and streets and bridges.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014)

§ 156.129 CONDITIONS OF APPROVAL.

In granting zoning variances, the Board of Adjustment is authorized to impose conditions that secure substantially the objectives of the regulations of the this chapter or provisions being varied or modified.

(Ord. 39, passed 10-3-2011)

§ 156.130 VARIATIONS FROM STATE WATERSHED MANAGEMENT REQUIREMENTS.

If the Board of Adjustment grants a variance that would result in the relaxation, by a factor greater than 10%, of any of the North Carolina Department of Natural Resources - Division of Water Quality minimum watershed management requirements (or the Vance County Watershed Protection Ordinance, Chapter 154 of this Code), the Board of Adjustment’s decision is subject to review and approval by the State Environmental Management Commission before it becomes final. In such cases, the Planning and Development Director or his/her designee must prepare a preliminary record of the variance application, the evidence submitted to the Board of Adjustment, and the Board of Adjustment’s findings and decision, and submit it to the State Environmental Management Commission. If the State Environmental Management Commission approves the variance as granted by the Board of Adjustment, the Board of Adjustment’s decision must then be considered final and the variance granted. If the State Environmental Management Commission approves the variance with conditions varying from, or in addition to, those imposed by the Board of Adjustment, the Board of Adjustment must revise its decision to include the varied or added conditions. If the State Environmental Management Commission denies the variance, the Board of Adjustment must reverse its decision and deny the variance.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.131 APPEALS TO SUPERIOR COURT.

Any interested party (defined as person(s) affected by the variance application) may seek review of the decision of the Board of Adjustment in Superior Court by proceedings in the nature of certiorari. Any notice of appeal to the Superior Court must be taken within 30 days after 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 person taking the appeal by personal service or first class mail, whichever is later. The person required to provide notice shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.