Zoning regulations are intended to protect and serve the public good. To do so, they should be applied universally and consistently. But sometimes, because of extraordinary conditions peculiar to a particular property, carrying out the strict letter of a zoning regulation would allow no reasonable use of that property. To avoid the unjust and unnecessary imposition of such an extreme hardship on the owner of the property, the Wake County Unified Development Ordinance provides a "safety valve." It authorizes the Board of Adjustment to grant "variances" where:
- Application of the regulation to a particular property would result in unnecessary hardship,
- Granting a variance from the regulation would be in harmony with the general purpose and intent of the UDO and preserves its spirit, and
- Granting the variance would assure the public safety and welfare and produce substantial justice.
Hardship variances from zoning regulations may be applied for and granted only in accord with the special hearing and review process set forth in Article 19-26, Wake County Unified Development Ordinance. [Additional conclusions are required if the regulations proposed to be varied are flood protection regulations in Article 19. (See Article 19-26-7, Unified Development Ordinance)]
It is strongly recommended that any person considering seeking a zoning hardship variance first contact Zoning Administration staff, who will explain the review process and potential issues, and provide the necessary forms and checklists.
Review of zoning hardship variance applications occurs in accord with defined cycles that accommodate review by County staff, preparation of a staff report and recommendation, a public hearing and review by the Board of Adjustment, and public notice of the hearing.
Initiation: After preparing an application (including plans), the applicant must submit it to Zoning Administration staff by one of the prescribed submittal deadlines, using the submittal checklist to ensure completeness (see submittal checklist and application links above)
Note: The fee for review of a zoning hardship variance application is $300.
Staff Review: After an application is accepted as complete, Zoning Administration staff review it in relation to the required conclusions. Zoning Administration staff prepare a staff report containing the staff findings and recommending approval or denial of the application, then submit the application and staff report to the Board of Adjustment. During this time, they also post notice of the upcoming hearing on the application at the proposed development site, and send such notice to owners of adjacent property.
Board of Adjustment Review: In reviewing zoning hardship variances, the Board of Adjustment acts much like a panel of judges. It holds a hearing to allow the staff, applicant, and other interested parties to present competent, substantial, and material factual evidence relating to the required conclusions. It then makes findings of fact supported by the presented evidence. Based on those findings, the Board decides whether or not it can reach each of the required conclusions. It may approve application only after it reaches all of the required conclusions. The Board may approve an application subject to conditions reasonably necessary to allow it to reach the required conclusions.
Note: The applicant bears the burden of presenting sufficient factual evidence to support findings of fact that allow the Board to reasonably reach each of the required conclusions.
Note: Because the Board may only consider evidence presented at the hearing, it is improper for the applicant or other interested parties to communicate with Board members outside the hearing.
If the application is approved and the variance granted, Zoning Administration staff prepare and issue the applicant a document describing the variance. After the variance is recorded, the applicant may apply for any necessary development permits and approvals in accord with the variance.
The applicant or other aggrieved party may appeal the Board's decision to Superior Court, provided the appeal is made within 30 days after the written notice of the decision is delivered to the applicant and is filed in the Zoning Administration offices.
For more information about zoning hardship variances and the application review process, contact Brenda Coats: 919-856-6215; FAX: 919-856-5824; Wake County Zoning and Subdivision Administration, PO Box 550, Raleigh, NC 27602-0550.
The Zoning Administration staff is located at the Permits/Plans Review Center, Mall level, Wake County Office Building, 336 Fayetteville St., Downtown Raleigh.