tag: North Carolina Land Use Litigator: At Zoning Variance: My Taste and the Ordinance's Do Not Agree

Tuesday, November 23, 2010, 9:48 AM

At Zoning Variance: My Taste and the Ordinance's Do Not Agree

A variance is one of the more sensitive yet powerful zoning tools available to the developer and the local government.

That's an omnious statement -- sort of like "clouds are gathering" or "Notre Dame football" -- but it probably means little in a vacuum. So, let's put a very simple, real-life face on this weapon.

Mr. Frosty owns an ice cream stand. That stand, though, is outgrowing its space. Mr. Frosty would like to expand the building about 10 feet in the direction of the frontage street. However, his building is already set back 25 feet from the road, the closest he can get to the street under the Town's zoning ordinance (what we call a "setback"). Mr. Frosty is debating whether he should attempt to amend the zoning ordinance to fit his wishes or whether he should bring a lawsuit against the Town. Well, these are cumbersome and risky options. The third option? A zoning variance.

A zoning variance is a quasi-judicial decision in North Carolina -- carrying with it all of that procedural hooplah -- which grants a landowner an exemption from the legal requirements that apply to everyone else in the city or county. According to Professor David Owens of the UNC School of Government, "The underlying notion of the variance is that a governing board cannot possibly anticipate every circumstance that will arise in the implementation of zoning and that an administrative tool short of amending the [zoning] ordinance or going to court is needed to deal with these peculiar situations." North Carolina courts have imposed strict requirements to prevent zoning variance abuse, making certain these allowances are not routinely and easily granted.

Then, what's the legal test for securing a zoning variance in North Carolina? Well, the first thing we should make clear is that "use" variances are never allowed. A use variance would include pursuit of permission for an otherwise impermissible use in the zoning district within which the property is located -- a dog food store in a residential zoning district, a multi-family house in a single-family residential zoning district. See N.C.G.S. Section 160A-388(c) ("No change in permitted uses may be authorized by variance.").

But we digress. The state statutes provide, "When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the board of adjustment shall have the power to vary or modify any of the regulations or provisions of the ordinance so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done." N.C.G.S. Section 160A-388(c). This standard for "awarding" a variance seems clear enough. But wait: in 2001, the North Carolina Court of Appeals concluded that the State's courts hadn't actually developed a workable standard for interpreting the statutory language: "practical difficulties or unnecessary hardship." Williams v. N.C. DENR, 144 N.C. App. 479 (2001). So, the Williams Court took it upon itself to require that the landowner should show that it "had been denied reasonable and significant use of his property."

Now where do we stand in North Carolina as to securing a variance? According to Professor Richard Ducker of the UNC School of Government, "For a North Carolina local government to grant a zoning variance, the unit must at a minimum find that the property owner has been 'denied reasonable and significant use of his property,' and that this language should be included in the ordinance standards. Alternatively, the ordinance may include a requirement that a property owner show that he or she can make 'no reasonable return from nor make no reasonable use of the property' without the variance." The distinction is subtle -- the former from the perspective of the specifically intended use, the latter from the perspective of any use -- but it may be that Professor Ducker's explanation is a good parsing.

Practitioners pursuing a variance should take care to understand the applicable standard in the jurisdiction, make a fulsome and appropriate quasi-judicial record in anticipation of judicial challenge, and keep on top of the necessary factual and legal findings the presiding board is required to make. These procedural pointers -- viewed with the understanding that more than mere inconvenience or financial loss absent a variance need be shown -- puts the developer or the local government in the best position to make these determinations.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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