Subpart G. Variances

42-365. General

All applications for a Variance shall include, at minimum: (1) the name(s) and address(es) of the owner(s) of the property in question; (2) the location of the property; (3) the PIN as shown on the County tax listing; (4) a description and/or statement of the present zoning district; (5) the appropriate level of site plan; and, where an applicant chooses to appoint an agent to speak on their behalf, (6) an agent form. All applications for a variance shall adhere to the applicable review and approval process as outlined in this Subpart.

42-366. Variances
  1. Purpose. Variances are intended to provide limited relief from the requirements of this Chapter in those cases where the strict application of the provisions of this Chapter would result in unnecessary hardship. Any use which requires a Variance shall not be permitted without the approval of the Zoning Board of Adjustment (ZBA) in accordance with the requirements and procedures set forth in this section.
  2. Application.
    1. Pre-application Conference. Each applicant for a Variance shall meet with the appropriate Administrator (within this section “Administrator” shall refer to any of the following: Communication Facilities, Manufactured Home Park, Soil Erosion and Sedimentation Control, Water Quality, Subdivision, or Zoning Administrator) in a pre-application conference no later than one (1) calendar week prior to the date the application is due. The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
    2. Application. Each application for a Variance shall be submitted along with the appropriate fee and site plan, to the Administrator on or before the first business day of the month. Applications may be modified by the Administrator as necessary, who may require the applicant to supply additional information pertaining to the Variance. Incomplete applications must be resubmitted on or before the first business day of the month or will not be processed until the proceeding month.
    3. Review Schedule. Applications for a Variance have a 45 day processing period for notification requirements and review by the Administrator (and, if necessary the Technical Review Committee (TRC)) prior to the public hearing.
    4. Fees. Any review fee established by the Board of Commissioners shall be submitted with the application.
  3. Staff Review. The Administrator shall process and review all applications for Variances. The Administrator may present the application to the TRC for its comments and recommendations and may forward the application on to the appropriate departments and agencies for their review. The Administrator shall also prepare a staff recommendation for the ZBA on the application for a Variance.
  4. Formal Review. Prior to taking any action on a Variance, the ZBA shall consider the Administrator’s recommendation on the Variance.
  5. Public Hearing. Prior to considering a variance application the ZBA shall hold a public hearing on the application in accordance with §42-371 (Quasi-Judicial Process Standards).
  6. Public Notification. Public notification of such hearing shall comply with the provisions of §42-371 (Quasi-Judicial Process Standards). The Administrator shall be responsible for all necessary public notifications.
  7. Quasi-Judicial Proceeding. The concurring vote of four-fifths (4/5) of the ZBA shall be necessary to grant a Variance. Any approval or denial of the request must be in writing and permanently filed with the office of the ZBA and with the Administrator as public record.
    1. Standards of Review. The ZBA shall not grant a Variance the effect of which would be to: (1) allow the establishment of a use not otherwise permitted in a general use district, (2) extend physically a nonconforming use of land or (3) change the district boundaries shown on the Official Zoning Map. No Variance shall be granted or considered where the fact that the property could be used more profitably is the reason for the request for the Variance. The following written findings must be made in order for the ZBA to grant a Variance:
      1. There are practical difficulties or unnecessary hardships in carrying out the strict letter of this Chapter, as demonstrated by:
        1. The fact that, if the applicant complies with the literal terms of this Chapter, he/she cannot secure a reasonable return from, or make a reasonable use of, the property.
        2. The hardship of which the applicant complains results from unique circumstances related to the applicant’s land.
        3. The hardship is not the result of the applicant’s own action.
      2. The Variance is in harmony with the general purpose and intent of this Chapter and will preserve its spirit.
      3. The Variance will secure the public safety and welfare and will do substantial justice.
      4. The Variance shall not be based on the existence of a nonconforming use of neighboring land or structures in the same district, or permitted nonconforming uses in other districts, and shall in no way constitute a reason for the requested Variance.
      5. The Variance shall not allow for an increase in density for the purposes of subdividing the land that would otherwise not be permitted by the applicable zoning district or subdivision
    2. Conditions. The ZBA may, in granting a Variance, prescribe: (1) additional conditions; (2) additional safeguards; (3) a time limit within which the action for which a Variance is sought shall be begun; (4) a time limit within which the action for a Variance is sought shall be completed; and (5) a time duration within which construction, operation or installation shall commence on the project for which the Variance was obtained.
  8. Variance Validity. Upon issuance of a Variance, the applicant shall have 12 months within which (unless otherwise specified by the ZBA) to commence construction, operation or installation. If construction, operation or installation is commended within the specified time period the Variance shall continue in force as long as the structure, operations or installation remains.
    1. Variance Revocation. If construction or operation is not commenced within 12 months (or other specified time period), the Variance shall no longer be valid.
42-367. Accommodative Temporary Variances
  1. Purposes. Accommodative Temporary Variances are intended to provide temporary limited relief from the requirements of this Chapter in those cases where the strict application of the provisions of this Chapter would result in unnecessary hardship. 
  2. Application.
    1. Pre-application conference.  Each applicant for a Accommodative Temporary Variance shall meet with the appropriate Administrator in a pre-application conference.  The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
    2. Application. Each application for a Accommodative Temporary Variance shall be submitted along with the appropriate site plan and a recommendation from a medical professional licensed by the State of North Carolina for the applicant under the requirements of the American with Disabilities Act, to the Administrator.  Applications may be modified by the Administrator as necessary, who may require the applicant to supply additional information pertaining to the Accommodative Temporary Variance.
  3. Staff Review. The Administrator shall process and review all applications for a Accommodative Temporary Variance. The Administrator shall review the proposal and determine its completeness, finding that the regulations of this Chapter that set forth specific standards would result in unnecessary hardship for an applicant covered by the American with Disabilities Act.
  4. Accommodative Temporary Variance Validity. The Administrator shall issue a written letter of approval.  The applicant shall have 12 months within which to commence construction, operation or installation.  If construction, operation or installation is commended within the 12 month period the Accommodative Temporary Variance shall continue in force as long as the structure,  operations or installation remains.  The Administrator will reconsider each Accommodative Temporary Variance every 5 years.
42-368. Variances (Flood Damage Prevention)
  1. Purposes. Flood Damage Prevention Variances are intended to provide limited relief from the requirements of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).
  2. Application.
    1. Application. Each application for a Flood Damage Prevention Variance shall be submitted along with a written report addressing each of the factors identified by §42-368 (Variances (Flood Damage Prevention)) E(1) (Granting Variances).
    2. Fees. The Board of Commissioners shall establish a Schedule of Fees, charges and expenses, and a collection procedure, for Flood Damage Prevention Variances and other matters pertaining to Article VIII (Natural Resources) Subpart A (Flood Damage Prevention). No application for a Flood Damage Prevention Variance, shall be processed unless or until such fees, as established, and all estimated expenses have been paid in full.
  3. Eligibility for Flood Damage Prevention Variance. Flood Damage Prevention Variances may  be issued for:
    1. 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 an historic structure and the Flood Damage Prevention Variance is the minimum necessary to preserve the historic character and design of the structure;
    2. Functionally dependent facilities if determined to meet the definition as stated in Article XIV, provided provisions of §42-368 (Variances (Flood Damage Prevention)) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety; or
    3. Any other type of development, provided it meets the requirements of §42-368 (Variances (Flood Damage Prevention)) and Article VIII (Natural Resources) Subpart A (Flood Damage Prevention); or
    4. Solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in Special Flood Hazard Areas provided that all of the following conditions are met:
      1. The use serves a critical need in the community;
      2. No feasible location exists for the use outside the Special Flood Hazard Area;
      3. The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
      4. The use complies with all other applicable Federal, State and local laws;
      5. Henderson County has notified the Secretary of the North Carolina department of Crime Control and Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
    5. But not for special fill permits, pursuant to §42-354 (Special Fill Permits) herein.
  4. Public Hearing. Prior to considering the Flood Damage Prevention Variance application, the Flood Damage Prevention Board shall hold a public hearing on the application in accordance with §42-371 (Quasi-Judicial Process Standards).
  5. Granting Flood Damage Prevention Variances.
    1. In determining whether to grant or deny Flood Damage Prevention Variances, the Flood Damage Prevention Board shall consider all technical evaluations, all relevant factors, all standards specified in Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), and:
      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 or erosion damage;
      3. The susceptibility of the proposed facility 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 facility to the community, including the retention of land for agriculture;
      5. The necessity to the facility of a waterfront location as defined under Article XIV (Definitions) as a functionally dependent facility, where applicable;
      6. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
      7. The compatibility of the proposed use with existing and anticipated development;
      8. The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area;
      9. The safety of access to the property in times of flood for ordinary and emergency vehicles;
      10. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
      11. The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and roads and bridges.
    2. Upon consideration of the factors listed above and the purposes of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), the Flood Damage Prevention Board may attach such conditions to the granting of Flood Damage Prevention Variances as it deems necessary to further the purposes and objectives of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).
    3. There are additional considerations of the Flood Damage Prevention Board in determining whether to grant or deny a Flood Damage Prevention Variance. Flood Damage Prevention Variances shall:
      1. Not be issued when the Flood Damage Prevention Variance will make the structure in violation of other Federal, State, or local laws, regulations, or ordinances.
      2. Not be issued within any designated floodway or non-encroachment area if any increase in flood levels during the base flood discharge would result.
      3. Only be issued upon a determination that the Flood Damage Prevention Variance is the minimum necessary, considering the flood hazard, to afford relief.
      4. Only be issued prior to Floodplain Development Permit (see §42-349 (Floodplain Development Permits)) approval.
      5. Only be issued upon:
        1. A showing of good and sufficient cause;
        2. A determination that failure to grant the Flood Damage Prevention Variance would result in exceptional hardship; and
        3. A determination that the granting of a Flood Damage Prevention Variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
  6. Written Notice. Any applicant to whom a variance is granted shall be given written notice specifying the difference between the Base Flood Elevation (BFE) and the elevation to which the structure is to be built and a written statement that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced reference level Such notification shall be maintained with a record of all variance actions.
42-369. Variances (Watershed Regulations)
  1. Purpose. Watershed Regulation Variances are intended to provide limited relief from the requirements of Article VIII Subpart B water supply watershed regulations. Water Supply Watershed Protection in those cases where the strict application of the provisions of this Chapter would result in unnecessary hardship. Any use which requires a Watershed Regulation Variance shall not be permitted without the approval of the Water Quality Board in accordance with the requirements and procedures set forth in this section.
  2. Application.
    1. Pre-application Conference. Each applicant for a Watershed Regulation Variance shall meet with the Water Quality Administrator in a pre-application conference no later than one (1) calendar week prior to the date the application is due. The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
    2. Application. Each application for a Watershed Regulation Variance shall be submitted along with the appropriate fee and site plan, to the Water Quality Administrator on or before the first business day of the month. Applications may be modified by the Water Quality Administrator as necessary, who may require the applicant to supply additional information pertaining to the Watershed Variance. Incomplete applications must be resubmitted on or before the first business day of the month or will not be processed until the proceeding month.
    3. Review Schedule. No formal review schedule is established for a Watershed Regulation Variance from Article VIII Subpart B. Water Supply Watershed
    4. Fees. Any review fee established by the Commissioners shall be submitted with the application.
  3. Staff Review. The Water Quality Administrator shall process and review all applications for Watershed Regulation Variances. The Water Quality Administrator shall notify in writing each local government having jurisdiction in the watershed of the Watershed Regulation Variance request, the notice for which shall include a description of the Watershed Regulation Variance being requested. Local governments receiving notice of the Watershed Regulation Variance request may submit comments to the Water Quality Administrator prior to a decision by the Water Quality Board. The Water Quality Administrator shall prepare a staff recommendation for the Water Quality Board on the application for a Watershed Regulation Variance.
  4. Formal Review. Prior to taking any action on a Watershed Regulation Variance, the Water Quality Board shall consider the Water Quality Administrator’s recommendation on the Watershed Regulation Variance. Comments received from local governments (if applicable) shall become a part of the record of proceedings of the Water Quality Board. The Water Quality Board shall refuse to hear an application for a Watershed Regulation Variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application. The Water Quality Board shall not grant a Watershed Regulation Variance without making the following three (3) findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
    1. Finding One (1). There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this Chapter, specifically Article VIII (Natural Resources) Subpart B. (Water Supply Watershed Protection). In order to determine that there are practical difficulties or unnecessary hardships, the Water Quality Board must find that the following conditions exist:
      1. If the applicant complies with the provisions of this Chapter, the applicant can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the Watershed Regulation Variance would permit a greater profit to be made from the property will not be considered adequate to justify the Water Quality Board in granting a Watershed Regulation Variance. Moreover, the Water Quality Board shall consider whether the Watershed Regulation Variance is the minimum possible deviation from the terms of this Chapter that will make possible the reasonable use of the property;
      2. The hardship results from the application of this Chapter to the property rather than from other factors, such as deed restrictions or other hardship;
      3. The hardship is due to the physical nature of the applicant’s property, such as its size, shape or topography, which is different from that of neighboring property;
      4. The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates this Chapter or who purchases the property after the effective date of this Chapter then comes to the Water Quality Board for relief; and/or
      5. The hardship is peculiar to the applicant’s property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a Watershed Regulation Variance would be a special privilege denied to others and would not promote equal justice.
    2. Finding Two (2). The Watershed Regulation Variance is in harmony with the general purpose and intent of this Chapter, specifically Article VIII (Natural Resources) Subpart B (Water Supply Watershed Protection), and preserves its spirit.
    3. Finding Three (3). In the granting of the Watershed Regulation Variance, the public safety and welfare have been assured and substantial justice has been done. The Water Quality Board shall not grant a Watershed Regulation Variance if it finds that doing so would in any respect impair the public health, safety or general welfare.
  5. Environmental Management Commission Review. Where the application calls for the granting of a Watershed Major Variance, and if the Water Quality Board decides in favor of granting the Watershed Regulation Variance, the Water Quality Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include the: (1) Watershed Regulation Variance application; (2) hearing notices; (3) evidence presented; (4) motions, offers of proof, objections to evidence and rulings on them; (5) proposed findings and exceptions; and (6) proposed decision, including all conditions proposed to be added to the Watershed Regulation Variance. The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
    1. Situation One (1). If the Environmental Management Commission concludes from the preliminary record that the Watershed Regulation Variance qualifies as a Watershed Major Variance and that the property owner can secure no reasonable return from, nor make any practical use of, the property unless the proposed Watershed Regulation Variance is granted and that the Watershed Regulation Variance, if granted, will not result in a serious threat to the water supply, then the Environmental Management Commission may approve the Watershed Regulation Variance as proposed or approve the proposed variance with conditions and stipulations. The Environmental Management Commission will prepare a Commission decision and send it to the Water Quality Board. If the Environmental Management Commission approves the Watershed Regulation Variance as proposed, the Water Quality Board shall prepare a final decision granting the proposed Watershed Regulation Variance. If the Commission approves the variance with conditions and stipulations, the Water Quality Board shall prepare a final decision, including such conditions and stipulations, granting the proposed Watershed Regulation Variance.
    2. Section Two (2). If the Commission concludes from the preliminary record that the Watershed Regulation Variance qualifies as a Watershed Major Variance and that the property owner can secure a reasonable return from or make a practical use of the property without the Watershed Regulation Variance or that the Watershed Regulation Variance, if granted, will result in a serious threat to the water supply, then the Commission may deny approval of the Watershed Regulation Variance as proposed. The Commission shall prepare a Commission decision and send it to the Water Quality Board. The Water Quality Board will prepare a final decision denying the Watershed Regulation Variance as proposed.
  6. Conditions. The Water Quality Board may, in granting a Watershed Regulation Variance, prescribe: (1) additional conditions regarding the location, character and other features of the proposed building, structure or use; (2) additional safeguards; (3) a time limit within which the action for which a Watershed Regulation Variance is sought shall be begun; (4) a time limit within which the action for a Watershed Regulation Variance is sought shall be completed; and (5) a time duration within which construction, operation or installation shall commence on the project for which the variance was obtained. If a Watershed Regulation Variance for the construction, alteration or use of property is granted, such construction, alteration or use shall be in accordance with the approved site plan.
  7. Variance Validity. Upon issuance of a Watershed Regulation Variance, it shall then be considered as a Water Supply Watershed Use Permit (see §42-358 (Water Supply Watershed Use Permits)), and shall adhere to the permit validity outlined therefore.