Insight by Morningstar Law Group Partner Nil Ghosh
Imagine you own a parcel of land where you desire to build a house. The property is large enough to build on, but the land is subject to a local zoning ordinance with various setback requirements and due to the shape and topography of the land, it would be extremely difficult to build in compliance with the ordinances. So, you take your matter to the local board of adjustment and ask for a variance from the zoning ordinance and put forward all your evidence in support, meeting all the requirements of North Carolina variance law. And then the board of adjustment says no anyway.
Earlier this month, in an unpublished opinion, the North Carolina Court of Appeals considered a similar issue. In Sanders P’ship, LLC v. City of Charlotte (24-604), the Court ruled that if a property owner is able to make a prima facia case for a variance, they are entitled to one.
Background
In Sanders, the Petitioners owned several acres of land on which they desired to construct a landfill. Pursuant to the City of Charlotte’s zoning ordinance, the Petitioners were able to build the landfill if they were able to meet eight qualifications. One of the qualifications is that the vehicular access for the landfill is not from a residential collector street. Unfortunately for the Petitioners, one of the two roads fronting the property had recently been designated as a residential collector street despite the fact that the road had served as the access point for two other nearby landfills, one of which previously operated on Petitioners’ property!
In fact, the property appeared to be the ideal location for a landfill. The Petitioners’ property had already been a landfill in the past and there was another landfill located across the road. Furthermore, the North Carolina Department of Transportation maintained “Trucks Entering the Highway” signs on the residential collector street near the entrance to the former landfill.
While the property did have frontage on another road, due to the location of other residential developments, NCDOT denied the Petitioners’ application for an entry there, explaining that entry from the residential collector street would be safer.
Due to this denial by NCDOT, which left the residential collector street as the only access to the property, the Petitioners filed for a variance with the Charlotte Board of Adjustment (the “BOA”).
Yet, at the hearing on the variance application, the BOA denied the variance. The Petitioners appealed the BOA decision to the Superior Court which reversed the BOA’s decision. Subsequently, the City appealed to the North Carolina Court of Appeals.
The Law of Variances
Pursuant to N.C. Gen. Stat. § 160D-705(d), to obtain a variance from a zoning ordinance in North Carolina, a property owner must satisfy the following criteria:
- Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
- 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 hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
- 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 is not a self-created hardship.
- The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
It should be noted that North Carolina’s variance law is far more generous than in other states. Virginia, for example, has a far more draconian standard for granting a variance. North Carolina’s variance law is shaped by the state’s desire to allow property owners to use their property.
In Sanders, however, the BOA determined that the Petitioners, despite the evidence presented—that the property had been a landfill in the recent past, that another landfill existed across the street, that the “residential collector street” designation was a recent change, that there was no other access to the property, and that NCDOT determined that the residential collector access was safest—only satisfied the third requirement (that the hardship was not the result of the Petitioners’ actions).
In its opinion, the Court, quoting Robertson v. Zoning Bd. of Adjust. for City of Charlotte, 167 N.C. App. 531 (2004), stated that an applicant for a variance “bear[s] the burden of proving their case and must show what type of variance they need and why the variance is needed” and that if an applicant meets their burden, “the board of adjustment shall vary any of the provisions of the zoning regulation ….” Therefore, once a property owner presents evidence for each of the elements of the statute, a board of adjustment must grant the variance.
Granting variances from zoning ordinances is an essential function of a board of adjustment. “One of the fundamental purposes of zoning boards of adjustment is to provide flexibility and prevent … practical difficulties and unnecessary hardships resulting from strict interpretations of zoning ordinances.” Morris Comm. Corp. v. City of Bessemer City Zoning Bd. of Adjust., 365 N.C. 152, 159 (2011). The entirety of the statute (and case law that has grown around it) indicates North Carolina’s desire that zoning ordinances not be applied in an overly technical, rigid manner.
In its review, the Court considered the evidence presented for each element of the variance statute as it applied to the case at hand and found that the Petitioners had provided prima facia evidence for each element sufficient to support the grant of a variance. The Court therefore affirmed the Superior Court’s reversal of the BOA’s denial and the variance was secured. While the opinion is unpublished, and therefore not able to be cited as a controlling legal authority, the case is a fantastic summary of North Carolina’s variance law and a reminder that a board of adjustment’s responsibility is not to judge the value of a variance, but to grant it if the applicant meets the statutory requirements. Once those requirements are met, the board of adjustment must grant the variance.
While this may seem self-evident, this rule is not always followed and it can still be difficult to obtain a variance, even if all the elements of the statute are met. If you are a property owner or developer in need of a variance, it is still important to have experienced legal guidance to assist you with your application and ensure that the right evidence is presented. While we recognize it is ideal to secure victory at the Board of Adjustment, lawyers at the Morningstar Law Group will prepare your variance so that a clean record will hold up on appeal if that is necessary, like in the Sanders case.
