(A) Authority for variance. Upon appeal to the Board of Adjustment, the Board may allow a variance authorizing relief or waiver from the terms and requirements of this code. Such authorization, which shall not be contrary to the public interest, may grant relief from the literal enforcement of this Code, because of undue or unnecessary hardship on the person appealing. The Board, in authorizing any variance, must find that the application for such change meets the criteria for variance request hereinafter set forth.
(B) Review by Planning and Zoning Board. Variance requests are to be reviewed by the Planning and Zoning Board at a public hearing and its recommendation shall be forwarded to the Town Council, sitting as the Board of Adjustment, for final action.
(C) Public hearing by Board of Adjustment. Within 30 days of receipt of the Planning and Zoning Board recommendations and record of proceedings, the Town Council, sitting as the Board of Adjustment, shall hold a public hearing to hear and review the application, and shall act on the application as required by law.
(D) Contents of variance application. An application for a variance shall require the submission of the following information and supporting documents:
(1) A statement of the petitioner’s interest in the property and the written consent to the petition by the owners of record and any property owners association having jurisdiction thereof;
(2) A plot plan or boundary sketch which has been reviewed and approved by the duly appointed representatives of any property owners’ association or property management corporation, together with a lot and block reference or other means of legal description to identify the property of the application;
(3) A complete list of all property owners and mailing addresses for all property within 200 feet of the subject parcel as recorded in the latest official tax roll prepared by the County Property Appraiser or otherwise determined;
(4) A statement of the special reasons or basis for the variance request, including the intended use and development of the property shown on an adequate site plan;
(5) The existing and/or proposed development of the site;
(6) Surrounding land uses within 100 feet of the site; and
(7) Any other reasonable information which may be required by the Board which is commensurate with the intent and purpose of this chapter.
(E) Criteria for variance request.
(1) In the review of applications for a variance, the following criteria shall apply.
(2) To authorize the issuance of a variance, the Board of Adjustment shall find that all of the following requirements are met by the property which is the subject of the application.
(a) Special conditions and circumstances exist which are peculiar to the land, structure or building involved, which are not generally applicable to other lands, structures or buildings in the same zoning district.
(b) The special conditions and circumstances involved do not result from the actions of the applicant.
(c) The literal interpretation of the provisions of the code would deprive the applicant of those which are rights commonly enjoyed by other properties in the same zoning district and which would work unnecessary and undue hardship on the applicant.
(d) The variance, if granted, would be the minimum variance that will make possible the use of the land, building or structure.
(e) The grant of the variance will be in harmony with the general intent and purpose of the code.
(f) The grant of the variance will not be injurious to the area involved or otherwise detrimental to the public welfare.
(F) Conditions for issuance of variances. In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with the code, violations of such conditions and safeguards if made a part of the terms under which the variance is granted, shall be deemed a violation of this code. The Board of Adjustment may also prescribe a reasonable time limit within which the variance shall be begun, or completed, or both.
(G) Limitations on issuance of variances. The Board of Adjustment shall not grant a variance which permits a use or special exception which is not permitted in the zoning district involved. The nonconforming use of neighboring lands, structures or buildings in the same zoning district and the permitted use of lands, structures or buildings in other zoning districts shall not be considered grounds for the authorization of a variance. Financial hardship alone shall not be considered sufficient evidence of the type of hardship required for the granting of a variance.
(H) Time limit for variance approvals. Unless a longer time period is provided by the Board, variances granted hereunder shall lapse if not implemented within 18 months from the date of approval. If judicial proceedings to review the issuance of the variance are instituted, such time period shall run from the date of entry of the final order in such proceedings, including all appeals.
(I) Review of Board of adjustment decisions. The decision of the Board of Adjustment in granting or denying a variance shall be final. The Board’s decision may be reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the county, in accordance with the procedure and time limits prescribed by the applicable court rules.
(Ord. 1-90, passed 1-31-1991)