How to Secure a Dimensional Variance from an NC Board of Adjustment

Beating Strict Zoning Laws with a Dimensional Variance

Buying a piece of property in North Carolina does not give you the right to build whatever you want, wherever you want on the lot. Every town and county has strict zoning ordinances dictating setbacks, building heights, and lot coverage. If you want to build a garage but the town says it is 5 feet too close to the property line, you are legally stuck. However, local governments provide a safety valve for property owners: the dimensional variance. Securing a variance allows you to legally break the zoning rules, but it is not easy to get. You must argue your case in a quasi-judicial hearing before a local Board of Adjustment, such as the Raleigh Board of Adjustment, Raleigh or the Mecklenburg County Board of Adjustment, Charlotte. Browse our USA Lawyer Directory to find a land use and zoning attorney who can help you win your variance.

The Golden Rule: Proving Unnecessary Hardship

Under N.C. Gen. Stat. § 160D-705, a Board of Adjustment cannot grant a variance simply because you want one, or because following the rules would cost you more money. You must prove an unnecessary hardship. Crucially, North Carolina law dictates that this hardship must stem directly from the physical characteristics of the land itself, not your personal circumstances. If you have a growing family and need more space, the board does not care; that is a personal hardship. If your property is shaped like a triangle and it is physically impossible to build a standard home within the setbacks, that is a property-based hardship. This strict standard was famously upheld in Showcase Realty & Constr. Co. v. City of Fayetteville Bd. of Adjustment, 155 N.C. App. 548 (NC Court of Appeals 2002), highlighting that variances are only for properties with unique, physical burdens.

Common Reasons to Request a Dimensional Variance

Variance requests generally fall into a few distinct categories based on the geography and layout of the specific parcel.

Setback Rule Exceptions

Setbacks dictate how far a structure must be from the front, side, or rear property lines. If a strict 30-foot rear setback would force you to build your home on top of a protected wetland located at the front of your parcel, you can ask for a variance to build 15 feet from the rear line instead.

Lot Size and Shape Irregularities

Many older, historic lots in North Carolina are pie-shaped, extremely narrow, or highly irregular. If modern zoning laws require a 50-foot lot width for a driveway, but your historic lot tapers down to 40 feet at the street, you can request a dimensional variance to make the lot usable.

Topographical Challenges

Mountainous areas in western North Carolina, or steep ravines in the Piedmont, present massive building challenges. If a zoning ordinance limits building heights, but you must build on a severe slope that naturally requires a taller foundation on one side, you can apply for a variance based on the topographical hardship.

Step-by-Step Guide to the Variance Process

A Board of Adjustment hearing is not a casual town hall meeting. It is a formal, quasi-judicial process where evidence is presented under oath.

Step 1: Submitting the Application

You must first file a detailed application with your local planning department. This usually involves submitting a Form Variance Application, North Carolina, Local Planning Department, Dimensional Variance Request, accompanied by professionally drafted site plans and surveys showing exactly why the variance is necessary.

Step 2: Preparing for the Quasi-Judicial Hearing

Before the hearing, the town will place signs on your property and mail notices to all adjacent neighbors. At the hearing, your attorney will present sworn testimony from architects, surveyors, or appraisers. You must prove four things under the statute: unnecessary hardship, the hardship is unique to the property, you did not cause the hardship yourself, and the variance will not harm the neighborhood's character.

Step 3: Appealing a BOA Denial to Superior Court

If the Board of Adjustment denies your variance, you cannot just reapply. Your only option is to appeal the decision to the state court system. Your attorney must file a Petition for Writ of Certiorari with the local court, such as Guilford County Superior Court, Greensboro. The judge will review the transcript of the hearing to determine if the Board made an illegal or arbitrary decision.

How Much Does it Cost?

Obtaining a variance requires upfront investment in both administrative fees and professional services.

How Long Does it Take?

The entire process from submitting your application to receiving a decision generally takes 45 to 90 days, depending on the Board of Adjustment's monthly meeting schedule. If your variance is denied and you appeal to the Superior Court, that legal process can add an additional 6 to 12 months to your timeline.

Frequently Asked Questions (FAQ)