What is a "variance" in the zoning context? Simply, it
is relief from -- or a variation of -- the application of a zoning
law to a particular piece of property.
Let's look a little harder at the process in North Carolina,
which is quasi-judicial and nuanced.
When and landowner can show a local board (most often a board of
adjustment, which is specified in State law, but sometimes a
planning board or even a governing board) through a quasi-judicial
proceeding that "unnecessary hardships" -- and only
"unnecessary hardships" -- will result "from
carrying out the strict letter of a zoning ordinance," then
the presiding board "shall vary any of the provisions of the
[zoning] ordinance upon a showing of all
of the following":
Unnecessary hardship would result
from the strict application of the ordinance. It shall not be
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 shall not be regarded as a
The requested variance is consistent
with the spirit, purpose, and intent of the ordinance, such that
public safety is secured, and substantial justice is achieved.
Not only must the applicant for the variance show each and all
of the foregoing, but the quasi-judicial board must vote as follows
to grant a variance: "The concurring vote of four-fifths of
the board shall be necessary to grant a variance." N.C.G.S.
It is not uncommon for zoning ordinances to provide more
detailed standards building upon these State law requirements.
However the State law standards above are
mandatory; local governments may provide
additional guidance and elaboration of these State law standards by
way of their local zoning ordinances, but local governments are
preempted from adopting standards that contradict or even depart
from these State law standards.
Upon granting the variance, the local government may impose
conditions on the variance provided the conditions are reasonably
related to the condition or circumstance that gave rise to the need
for the variance. Indeed, local zoning ordinances will often direct
the deciding quasi-judicial board to impose conditions on
variances. If a variance applicant accepts and acts on the variance
imposed with conditions, the conditions are binding and cannot be
challenged; that is, the applicant is "estopped". If an
amendment to variance conditions is sought, the amendment effort
must proceed through the entire variance procedure; in essence, a
new variance is being sought.
Variances (and conditions) apply to and run with the property.
Therefore, the transfer of ownership or occupancy has no impact on
the application of a variance or its conditions.
Lastly, and in some ways most commonly asked in cocktail
parties, a variance is not allowed for a use. N.C.G.S.
160A-381(b1). That is, if a use is not permitted in a zoning
district, State law expressly prohibits a variance to permit that
use. In that case, the applicant needs either a new use or an
amendment to the zoning laws.
Lastly, lastly, in 2013, the North Carolina General Assembly
amended State law to allow for variances in other
"ordinance[s] that regulate land use or development",
as well. S.L. 2013-126 (sec. 1); N.C.G.S. 160A-388(d). However,
before we get excited, the local ordinances must expressly provide
for variances in those other "non-zoning' laws that
"regulate land use or development" (think, for example,
subdivision laws); unlike variances from zoning laws, which are
allowed under State law regardless of local ordinance
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In a Law360.com article published on January 2nd titled "California Real Estate Legislation and Regs to Watch in 2017," Andrew McIntyre of Law360 addresses the challenges facing the California real estate market in the new year.
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