SECTION .0700 – PROCEDURES FOR CONSIDERING VARIANCE PETITIONS

 

15 NCAC 07J .0701           VARIANCE PETITIONS

(a)  Any person whose application for a CAMA major or minor

development permit has been denied or issued with condition(s) that the person

does not agree with may petition for a variance from the Commission by means of

the procedure described in this Section.  Before filing a petition for a

variance from a rule of the Commission, the person must seek relief from local

requirements restricting use of the property, and there must not be pending

litigation between the petitioner and any other person which may make the

request for a variance moot.

(b)  The procedure in this Section shall be used for all

variance petitions except when:

(1)           the Commission determines that more facts

are necessary; or

(2)           there are controverted facts that are

necessary for a decision on the variance petition.

(c)  Variance petitions shall be submitted on forms provided

by the Department of Environment and Natural Resources.  The following

information shall be submitted before a variance petition is considered

complete: 

(1)           the case name and location of the

development as identified on the denied permit application;

(2)           a copy of the deed to the property on which

the proposed development would be located;

(3)           a copy of the permit application and denial

for the development in question;

(4)           the date of the petition, and the name,

address, and phone number of the petitioner and his or her attorney, if

applicable;

(5)           a complete description of the proposed

development, including a site drawing with topographical and survey

information;

(6)           a stipulation that the proposed project is

inconsistent with the rule from which the petitioner seeks a variance;

(7)           notice of the variance petition sent

certified mail, return receipt requested to the adjacent property owners and

persons who submitted written comments to the Division of Coastal Management or

the Local Permit Officer during the permit review process and copies of the

documents which indicate that the certified mail notices were received or that

deliveries were attempted;

(8)           an explanation of why the petitioner

believes that the Commission should make the following findings, all of which

are necessary for a variance to be granted:

(A)          that unnecessary hardships would result from strict

application of the development rules, standards, or orders issued by the

Commission;

(B)          that such hardships result from conditions peculiar

to the petitioner's property such as the location, size, or topography of the

property;

(C)          that such hardships did not result from actions

taken by the petitioner; and

(D)          that the requested variance is consistent with the

spirit, purpose and intent of the Commission's rules, standards or orders; will

secure the public safety and welfare; and will preserve substantial justice.

(9)           a proposed set of stipulated facts, for

staff's consideration, containing all of the facts relied upon in the

petitioner's explanation as to why he meets the criteria for a variance; and

(10)         proposed documents, for the staff's

consideration, that the petitioner wants the Commission to consider.

(d)  Petitions shall be mailed to the Director of the

Division of Coastal Management, Department of Environment and Natural

Resources, 400 Commerce Avenue, Morehead City NC 28557 and to Air and Natural

Resources Section, Environmental Division, Attorney General's Office, 9001 Mail

Service Center, Raleigh, NC  27699-9001.

(e)  A variance petition shall be considered by the

Commission at a scheduled meeting.  Petitions shall be scheduled in

chronological order based upon the date of receipt of a complete variance

petition by the Division of Coastal Management.  A complete variance petition,

as described in Paragraph (c) of this Rule, shall be received by the Division

of Coastal Management at least six weeks in advance of a scheduled Commission

meeting to be considered by the Commission at that meeting.  If the petitioner

seeks to postpone consideration of his or her variance request, the request

shall be treated as though it was filed on the date petitioner requested

postponement and scheduled for hearing after all then pending variance

requests.

(f)  Written notice of a variance hearing or Commission

consideration of a variance petition shall be provided to the petitioner and

the permit officer making the initial permit decision. 

 

History Note:        Authority G.S. 113A-120.1; 113A-124;

Eff. December 12, 1979;

Amended Eff. December 1, 1991; May 1, 1990; March 1,

1988, February 1, 1983;

Temporary Amendment Eff. December 20, 2001;

Temporary Amendment Expired October 12, 2002;

Temporary Amendment Eff. December 1, 2002;

Amended Eff. March 1, 2009; June 1, 2005; August 1, 2004.