Variances

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What is a variance?

The variance process may provide limited relief from the requirements of Cary’s development requirements in cases where strict application of a particular requirement will create an “unnecessary hardship.” 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. Rather, it is intended to provide relief where a hardship results from conditions peculiar to the property itself. State and/or federal laws or requirements may not be varied by the Town. Land Development Ordinance 3.20.1

Property owners may apply for variances if conditions of their property are challenged by location, size, or topography. In some cases, “Minor Modifications” rather than a variance can address minor adjustments to items such as building setbacks, building heights, impervious surface limitations, modifications to parking standards, etc. Review Table 3.19-1 Minor Modifications Allowed for the full list.

Some minor adjustments may qualify for a Director's Modification.

Land Development Ordinance 3.20

Required Pre-application Conference

A pre-application conference must be completed at least five days before a variance application will be accepted. This is an opportunity for staff to review the application for completeness and determine if there may be other options available to the applicant.

Schedule a pre-application conference with Cary’s staff by emailing: 311@townofcary.org and put Variance Pre-application Conference in the subject line. Include the property address, a phone number, an email address, a site plan of the property highlighting the area, and a general description of what you hope to achieve with the variance. Also, please provide a sketch or survey of the property to illustrates the situation. A Planning Department staff member will contact you within a few days.

What is a survey or plot plan and how do I obtain it?

A survey (sample survey) is a professionally prepared diagram that shows the boundaries of a property and all structures on the property. Surveys are private documents and not produced or maintained by the Town or the Register of Deeds.

Often, lots are surveyed at the time of a real estate transaction or prior to issuance of a Certificate of Occupancy. For residential parcels, homeowners should check to see if a survey was included in their closing package.

If you do not have a survey, you must hire a surveyor to prepare one. The survey you submit with your application must show the location and dimensions of all proposed or existing improvements and their distance from the property lines.

Please be aware, when a structure is within five feet of a required setback, Cary requires an As Built Survey following the completion of the work to confirm the project complies with the specifications. Ask your surveyor to calculate the cost of both surveys.

How long is the variance process?

It may take a few months before your case is scheduled. Cases are scheduled after the application is complete, all mandatory fees and information are received, and staff deems the case is ready to move forward. Timing may also be impacted by the number of previously scheduled cases.

Variances are heard by the Zoning Board of Adjustment (ZBOA) at a quasi-judicial hearing, which is similar to a court hearing. This means certain rules govern what types of evidence may be provided and who may provide it. Those rules include:

All testimony must be presented under oath;
Opinion testimony may only be provided by experts;
All testimony is subject to cross examination;
Corporations must be represented by an attorney licensed to practice in North Carolina; and
Ex parte communication is not allowed. Applicants may not contact the Zoning Board of Adjustment (ZBOA) members outside of the public hearing.

After conducting the hearing, the Zoning Board of Adjustment may deny the application; conduct an additional hearing on the application; or grant the requested variance.

What are the fees associated with a variance?

What is the likelihood of a variance being approved?

The Zoning Board of Adjustment (ZBOA) evaluates requests using the below criteria. The ZBOA may approve the variance only if it finds that all the criteria below have been met:

(A) 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.

(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 hardship resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.

(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.

LDO Section 3.20.5 Approval Criteria

As part of the application process, staff reviews your application and provides observations on your “hardship” and whether they feel you have sufficient evidence for the Board to potentially grant your request. Staff’s guidance is based on past experience but the ZBOA makes the sole and final decision.

Also, state law requires four of the five ZBOA members to vote in favor of granting a variance, a higher number than is required by many other actions the Board takes. Due to the above, it is strongly recommend you hire an attorney to assist you in this process.

The public hearing process.

The Zoning Board of Adjustment meets in person at Cary Town Hall in the Council Chambers, typically the first Monday of each month.

After the board chair calls the meeting to order, staff presents an overview of the case. Next the applicant will present their request. Corporations must be represented by an attorney. To ensure your case is handled in compliance with quasi-judicial procedures, residential property owners are encouraged to be represented by an attorney.

Can an approved variance be appealed?

Within 30 days of the ZBOA’s final decision on the variance request, any person with standing (a person directly affected by the decision) may appeal the decision to the superior court in the county where the decision was made.

If this occurs, staff will either not issue a building permit or, if the permit was already issued, halt building inspections, and not issue a Certificate of Occupancy until the appeal is resolved.

We recommend not applying for the building permit until 30 days after the variance is recorded with the Register of Deeds.

LDO 3.20.8 Appeal

What documents will I need for a complete application?

Following your pre-application conference you may apply for a variance.

Fill out the application completely in the electronic plan review port and include all supporting materials specified by the official responsible for accepting the application.

Upload all supporting documents in PDF format. Please include:

A professional survey showing the lot lines with measured distances and the location and outline of existing and proposed structures with measured dimensions.

Any other information, documentation, or exhibits that support your request.

Additional documentation requested by staff after reviewing your application and this completed variance application form.

How do I submit a request for a variance?

Following your pre-application conference, apply for a variance using the electronic plan review portal where you scheduled your conference.

The application must be filed by the property owner or their representative (attorney), a lessee, or by someone under contract to purchase the property.

Applications are accepted electronically. Set up an account on our Electronic Plan Review Portal using your email address or login into your account. (Instructions for submitting an electronic application) Fill out the form by answering all questions. After you complete the application, you will have an opportunity to upload the required files.

Select the following responses to start the correct application:

Submit a Project for Review
County (Choose: Wake or Chatham)
Jurisdiction (Choose: Cary or Morrisville)
Application Category (Select: Planning Variances & Appeals)
Application Type (Select: Variance Application)

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