Subdivision regulations are intended to protect and serve the public good. To do so, they generally need to be applied universally and consistently. But sometimes, because of extraordinary conditions peculiar to a particular property, carrying out the strict letter of a subdivision regulation would allow no reasonable subdivision 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 Planning Board to grant "variances" from subdivision regulations in those rare cases where:
- Application of the regulation to the subdivision of a particular property would result in extraordinary and unnecessary hardships,
- 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 ensure the public safety and welfare and produce substantial justice.
Hardship variances from subdivision regulations may be applied for and granted only in accord with the special review process set forth in Article 19 of the Wake County Unified Development Ordinance.
It is strongly recommended that any person considering seeking a subdivision hardship variance first contact Subdivision Administration staff, who will explain the review process and potential issues, and provide the necessary forms and checklists.
Review of a subdivision hardship variance application associated with a regular subdivision occurs in conjunction with review of the application for preliminary subdivision plan approval of the subdivision. The review process accommodates review by County staff, preparation of a staff report and recommendation, and a hearing and review by the Planning Board and public notice of the hearing.
Review of subdivision hardship variance application associated with a minor subdivision occurs separately from – and before – review of the minor subdivision, in accord with defined cycles that accommodate review by County staff, preparation of a staff report and recommendation, and a hearing and review by the Planning Board.
Initiation: First, review the Subdivision Variance Justification document. Then, after preparing an application (including plans), the applicant must submit it to Subdivision Administration by the applicable submittal deadline, using the submittal checklist to ensure completeness.
Staff Review: After an application is accepted as complete, Subdivision Administration staff review it in relation to the required conclusions.
Subdivision Administration staff prepares a staff report containing the staff findings and recommending approval or denial of the application, then submits the application and staff report to the Planning Board (along with the staff report on the application for preliminary plan approval, if the variance is associated with a regular subdivision). During this time, they also post notice of the upcoming hearing on the Planning website.
Planning Board Review: In reviewing subdivision hardship variances, the Planning Board 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, 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 has reached 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, the associated application for subdivision approval may be reviewed and decided in accord with the variance.
If the application is denied, the applicant may appeal the the denial to the County Board of Commissioners, provided the appeal is made within 30 days after the Planning Board's decision.
For more information about subdivision regulation, contact:
Wake County Zoning and Subdivision Administration, 919-856-6216
336 Fayetteville St., PO Box 550
Raleigh, NC 27602-0550
The Wake County Current Planning staff are located at the Permits/Plans Review Center, Mall level, Wake County Office Building, 336 Fayetteville St., Downtown Raleigh.