Cape Fear COG trainer tells Pender County Board of Adjustment to apply four variance findings and avoid ex parte contacts

Daniel Adams of the Cape Fear Council of Governments told the Pender County Board of Adjustment on Feb. 18 that members must decide variance requests using statutory standards and evidence presented in the hearing record. Adams, the presentation's primary speaker, reviewed the origin of local authority, the four findings required for a variance, limits in the county Unified Development Ordinance and related appeals rules.

Adams said a variance exists when "an unnecessary hardship would result from carrying out the strict letter of a zoning regulation," and outlined the four findings the board must make: hardship resulting from the regulation, conditions peculiar to the property, hardship not being self‑created by the applicant, and consistency with the spirit, purpose and intent of the regulation so that public safety is secured and substantial justice is achieved. He told the board they should "evaluate and analyze" the fourth finding on a case‑by‑case basis.

Adams emphasized procedural safeguards for quasi‑judicial hearings. "Ex parte communication is prohibited," he said, adding that board members should disclose any outside contact and avoid conducting independent fact‑finding outside the hearing. He also reminded the board that appeals are governed by Article 3.16 of the UDO and North Carolina General Statute 160D‑405: a person with standing generally has 30 days from receipt of written notice to file an appeal. Adams noted that submitting an appeal "stays enforcement," pausing daily fines (he cited Pender County's $100‑per‑day violation accrual) while the appeal is pending.

County staff and Adams reviewed three past variance cases to illustrate how the standards and conditions are applied. In variance case 25‑22 (the LeBreque family at 531 Kimberly Court), staff said an updated survey showed a 20‑foot drainage easement and septic constraints that limited buildable area; the board approved a 6.16‑foot encroachment for an accessory structure and required the applicant to install a gutter system to direct runoff away from a neighbor. In a second example (Thomas Clement, 347 Dogwood Lane), staff described siting an accessory structure closer to the front yard to avoid a more intensive flood designation in the rear; the board found the request reasonable given site constraints. In a commercial example off William Store Road, Hampstead Self Storage LLC obtained relief from tree mitigation requirements after showing limited room to meet planting obligations while preserving significant oaks where possible.

Adams told members that some matters — for example allowing a use not in the UDO use table or changing maximum density — are policy decisions that must proceed through staff, planning board and the Board of Commissioners, not through the Board of Adjustment. He reiterated that variances require a supermajority (four‑fifths) vote to approve and that decisions must be reduced to writing and provided to applicants because they are appealable to superior court.

Board members asked several procedural questions — including how standing is applied to covenants and homeowners associations, when staff issues written determinations, and whether driving by a property should be disclosed — and Adams and county staff advised consultation with legal counsel for nuanced legal questions. The board approved the meeting agenda at the start of the session, heard no public comment, and set its next meeting for March 18, 2026. The meeting adjourned at 10:17 a.m.