Agenda - Planning Commission - 03/03/2005

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February 10, 2005 -- Page 5 Variance-- Homeowner requests variance for oddly-shaped fence Fence changes in height over its length Citation: Robe rtson'v. ZOning Board of Adjustment for the City of Charlotte, Court of Appeals of North Carolina, No. COA04-166 (2004) NORTH CAROLINA (12/21/04)- Robertson built a fence in front of his home.. The fence extended thl0ugh the required 20-foot setback and continued through the side yard to the rear of the proPerty~ Because of the topography of the property, the fence began at a height of less than five feet above grade and rose to eight feet above grad~ at the 20~f°°t front setback line. Under local ordinances, a fence within, the setbaCk coUidbe no higher than five feet-above grade. The county zoning inspector ~ent Robertson. a notice that. his fence violated the local ordinance. Robert~on requested a three-foot Variance for the existing fence to remain. The variance was denied for the part of the fence within the setback. Th.e zoning bo~d concluded that Robertson made his own hardship by building the fence before applying for a variance; Furthermore, the board found that Robert.son built the fence bedause of an argument withhis neighbor, and the size of the slope on his: property did not justify the large variance request. Robertson sued, and the court ruled in favor of the zoning board. Robertson appealed, arguing he was entitled to a variance because of the topography of his land. DECISION:bmrmed. Robertson's alleged undue hardship was personal in nature and his fence created a nuisance. In general, the board's authority to' grant a variance arose when its decision conformed with {he meaning andintent of the zoning ordinance. Consequently, the board was prohibited from authorizing a structure that conflicted with the general purpose of the Ordinance. To do otherwise would be'an amendment of the law and not a variarlce of its regulations. Here, the board relied on 'competent evidence in making its decisiOn that Robertson's fence interfered with Public safety and would be .directly contrary to the zoning ordinanc~. In addition, Robertson created .his own hardship by building the fence without fin'st applying for a variance. The court concluded that the board was reaaonabl_¢ in concluding that the variance would interfere with the public safety of any individuals traveling on the road near the fence. Therefore, since the ordinance 'Was designed to promote public safety, the board had no authority to grant the variance. see also: Tucker v. MeCklenburg iCoUnty Zoning Board of Adjustment, 576 S.E. 2d 324 (2003). see also: Williams v. North Carolina DePartment of Environment & Natural- Resources, 548 S.E. 2d 793 (2001); © 2005 Ouinlan Publishing GrouP.: Any repr°du~lion is p~°hibited. For more information please call (617) 542-0048. 103