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Tag Archives: Variance

Panel upholds Cary’s rejection of variance for development (access required)

The nixing of a Charlotte-based developer's plan to develop a 108-acre tract in Cary's Alston Activity Center has been upheld by the Court of Appeals after the panel affirmed the denial of a variance request. The developer, Cary Creek Limited Partnership, asked the town of Cary in 2006 for a variance from an ordinance establishing 50- and 100-foot buffer zones around perennial and intermittent streams. The developer wanted to fill in two intermittent streams that are "drainage areas that flow only during wet seasons," according to the opinion. The town denied the developer's request for a variance. A Wake County superior court judge upheld the town's ruling, and the developer appealed.

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Real Property – Zoning – Variance – Riparian Buffer – Scope of Review (access required)

Cary Creek Limited Partnership v. Town of Cary. Although the trial court was without authority to make independent findings of fact under G.S. § 160A-388(2), in doing so it largely recited uncontroverted evidence, so the error was not prejudicial. The town's denial of the plaintiff's variance request was supported by competent, material and substantial evidence.

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Environmental – Administrative – Real Property – Variance – Land-Disturbing Activity – Sedimentation Pollution Control Act (access required)

Hensley v. North Carolina Department of Environment & Natural Resources. Both the respondent-developer's proposal and the respondent-agency's variance conditions ensured that erosion and sedimentation were minimal during the period of golf course construction along Banks Creek. Our Court of Appeals held that the project was not "temporary" because of the developer's presumed need to conduct periodic maintenance activity in the creek's buffer zone; however, this reading contradicts the stated purpose of the Sedimentation Pollution Control Act: to encourage continued development.

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Municipal – Zoning – Conflict of Interest – Hearing – Variance – Neighboring Nonconforming Use (access required)

Harbor Baptist Church v. City of Charlotte. (Lawyers Weekly No. 10-16-0778, 11 pp.) (Rick Elmore, J.) Appealed from Mecklenburg County Superior Court. (Robert C. Ervin, J.) N.C. App. Unpub. Holding: The defendant-city’s zoning board of adjustment (ZBA) discussed both ZBA ...

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