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Zoning Laws are preventing me from using my property the way I want. What do I do?
What is a variance?
In a previous post we discussed rezoning and the rezoning process. There are times a particular issue with the relevant zoning ordinance cannot be resolved by rezoning the property in question from one use to another. Instead, if the landowner needs an exception from the zoning ordinance, a variance is the appropriate solution. A variance is the relief, or a variation of, the application of the relevant zoning ordinance to a parcel of real property.
How does a variance work?
To answer this question, let’s suppose a landowner owned a parcel of real property that was 150 feet in depth from the road in front to the back of the property. Assume that a railroad easement overlaps the rear 100 feet of that property (and forbids construction of a structure in that easement) and the local municipality’s zoning ordinance requires a 50 foot setback from the road to any structure. The easement and setback essentially preclude the landowner from building a structure on that property. A rezoning of the property would accomplish nothing. The only avenue for relief is for the landowner to request a variance from the 50 foot setback requirement. A variance in this scenario would let the landowner build a structure on the property even though the strict language of the zoning laws would forbid it.
How do I obtain a variance?
A person seeking a variance must apply with their local municipality. N.C.G.S. Section 160A-388(d) requires an applicant to show the following:
- Unnecessary hardship would result from the strict application of the ordinance.
- The hardship results from conditions that are peculiar to the property, such as location, size, or topography.
- The hardship did not result from actions taken by the applicant or the property owner.
- 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 hearing will thereafter be held before the local municipality’s board of adjustment, who will determine whether to grant the variance.
Seeking a variance is a difficult matter to face if you’re a landowner. At Helms Robison Lee & Bennett, P.A. we have several real property attorneys well-versed in all aspects of zoning and land use problems, including how to seek and secure a variance. Call us at 704.289.4577 and we will be happy to help!
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