8.5.12 Variances

A person who wishes to undertake a prohibited use shall first submit a request for a minor or major variance to the appropriate jurisdiction as stated below. A minor variance is required for any activity that impacts only the outer 20 feet of a riparian buffer. A major variance is required for any activity that impacts any portion of the inner 30 feet of a riparian buffer. Such variances are separate from variances authorized under Sec. 3.14, Variance.

Pursuant to 15 NCAC 02B .0233 (9), a minor variance request shall be submitted to the North Carolina Division of Water Resources (Division) for review and decision. The Division may attach conditions to approval that support the purpose, spirit and intent of the riparian buffer protection program. Appeal from the Division decision shall be to the Office of Administrative Hearings.

Pursuant to 15 NCAC 02B .0233 (9)(c), a major variance request shall be submitted to the Division for initial review. If the Division determines that the request meets the requirements of paragraph 3, Variance Requirements, below, it shall submit preliminary findings to the NC Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor. Within 90 days after receipt by the Director of a complete application, the Commission shall approve, approve with conditions or stipulations, or deny the request. Upon and in accordance with the Commission’s decision, the Division shall issue a final decision granting, granting subject to conditions or stipulations, or denying the major variance. Appeal from either the initial Division determination or the Commission decision shall be to the Office of Administrative Hearings.

Pursuant to 15 NCAC 02B .0233 (9)(a), the Division shall make a finding of fact as to whether the following requirements have been met:

a. There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the riparian buffer protection requirements. Practical difficulties or unnecessary hardships shall be evaluated in accordance with the following:

(1) If the applicant complies with the provisions of this section, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the Division shall consider whether the variance is the minimum possible deviation from the terms of this section that shall make reasonable use of the property possible;

(2) The hardship results from application of this section 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 applicant did not cause the hardship by knowingly or unknowingly violating this section; and

(5) The hardship is unique 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 variance would be a special privilege denied to others, and would not promote equal justice;

b. The variance is in harmony with the general purpose and intent of this section and preserves its spirit; and

c. In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.

A minor variance request shall be submitted to the City or County as appropriate for review and decision. The City or County may attach conditions to approval that support the purpose, spirit and intent of the riparian buffer protection program and this section. Despite the provisions of Section 2.4, Board of Adjustment, appeal from the City or County decision shall be to the Division Director, c/o the 401 Oversight Express Permitting Unit, or its successor. The Director’s decision is subject to review as provided in Articles 3 and 4 of G.S. 150B.

A major variance request shall be submitted to the City or County as appropriate for initial review. If the City or County determines that the request meets the requirements of paragraph 3, Variance Requirements, below, it shall submit preliminary findings to the North Carolina Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor. Within 90 days after receipt by the City or County of a complete application, the Commission approves, approves with conditions and stipulations, or denies the request. Despite the provisions of Section 2.4, Board of Adjustment, appeal from the initial City or County determination or the Commission decision shall be to Superior Court.

The City or County shall make the following three findings of fact in order to determine that the variance requirements are met:

a. There are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer protection requirements. The following criteria must all be met in order to make such finding:

(1) If the applicant complies with the provisions of this section, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the variance shall be the minimum possible deviation from the terms of this Ordinance that shall make reasonable use of the property possible;

(2) The hardship results from application of this section 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, such that compliance with provisions of this section would not allow reasonable use of the property;

(4) The applicant did not cause the hardship by knowingly or unknowingly violating this Ordinance; and

(5) The hardship is rare or unique to the applicant’s property.

b. The requested variance is in harmony with the general purpose, spirit and intent of the state riparian buffer protection requirements and/or this section; and

c. In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.