(A) Purpose and applicability. Because of special circumstances applicable to a property, including its size, shape, topography, location or surroundings, there may be instances in which the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other properties in the same zoning district. To ensure a fair application of this chapter, a variance from the standards imposed may be granted by the Board of Adjustment. In granting a variance:
(1) Consideration may be given with respect to dimensional and performance standards including, but not limited to site dimensions, yards, height of structures, distances between structures, open space requirements, signage dimensions, fences, and walls.
(2) Nothing shall be construed to empower the Board to change the terms of this chapter, to authorize uses which violate any other town ordinance, to affect changes in the zoning map, to add to the uses permitted or adjust the permitted density in any zoning district, or to grant a conditional use permit.
(3) All sections of this code are considered binding unless relief is granted through the variance process.
(4) All shall be personal to the appellant and shall be transferable and run with the land only after completion and final inspection of any authorized structure.
(B) Variance application process.
(1) Pre-application conference. Prior to the submission of an application for a variance, all applicants are required to schedule a meeting with the Zoning Administrator, as set forth in § 152.086(A).
(2) Application submittal. A complete application for a variance shall be submitted to the Zoning Administrator as required by § 152.086(B). At minimum a variance application shall include:
(a) Proof of ownership;
(b) A written statement indicating the variance will meet the requirements listed in § 152.093(C);
(c) A site plan showing the footprint and proposed use of all buildings proposed, parking configuration and other details necessary to demonstrate that the proposed use and site conforms with all other requirements of the zoning district and variance requirements; and
(d) The applicant shall submit any other information identified in the pre-application meeting and all required information stated elsewhere in this code for a variance.
(3) Citizen review process.
(a) The applicant shall not be required to conduct a neighborhood meeting, however for certain variance requests staff shall have the option to require the applicant to schedule and conduct a neighborhood meeting to avoid any unnecessary delays during the public hearing process.
(b) If the applicant chooses to hold or is required to hold a neighborhood meeting it shall be conducted in accordance with the procedures set forth in § 152.086(C).
(4) Application review and report. Upon receipt of a complete variance application, the Zoning Administrator shall review the proposed variance for compliance with criteria enumerated in § 152.093(C). The Zoning Administrator shall then prepare a staff report for transmittal to the Board of adjustment.
(6) Board of Adjustment review and action.
(a) The Board of Adjustment shall review the application in a public hearing and may approve, approve with modifications and/or conditions, or deny the variance.
(b) Conditions of approval. In approving a variance, the Board of Adjustment may impose reasonable conditions necessary to:
1. Achieve the general purposes of the zoning code or the specific purposes of the zoning district in which the site is located, or to make it consistent with the general plan;
2. Protect the public health, safety, and general welfare; or
3. Insure operation and maintenance of the use in a manner compatible with existing and potential uses on adjoining properties or in the surrounding area.
(7) Written notification. The decision to approve or approve with conditions or deny shall be communicated in writing to the applicant in compliance with § 152.086(G).
(C) Required findings. The Board of Adjustment shall only approve a variance after finding that all of the following conditions are met. Financial hardship, personal preference of the owner, or the fact that property may be utilized more profitably if the requested variance is granted shall not be considered grounds for a variance.
(1) Special conditions and circumstances exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, structures, or buildings in the same zoning district.
(2) A literal interpretation of this chapter would deprive the appellant of rights commonly enjoyed by other properties in the same zoning district.
(3) The alleged hardship caused by literal interpretation of the provisions of this chapter includes more than personal inconvenience and financial hardship and is not the result of actions by the appellant.
(4) Granting the variance will not confer upon the appellant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same zoning district.
(5) Granting the variance will not interfere with or substantially injure the appropriate use of adjacent conforming properties in the same zoning district.
(6) The reasons set forth in the appeal justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.
(7) Granting the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.
(8) No variance shall be granted from any written conditions attached by another decision-maker to the approval of a rezoning, conditional use permit, subdivision plat, or site plan.
(9) No variance shall be granted if the conditions or circumstances affecting the applicant's property are of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situations.
(10) No non-conforming use or violations of this chapter with respect to neighboring lands, structures or buildings, in the same zoning district, and no permitted use of lands, structures or buildings in other zoning districts, shall be considered grounds for granting a variance.
(11) Every decision of the Board shall be based upon findings of fact, and every finding of fact shall be supported in the record of its proceedings. The conditions required by this chapter to exist on any matter upon which the Board is authorized to pass under this chapter shall be construed as limitations on the power of the Board to act. A mere finding or recitation of the enumerated conditions, unaccompanied by findings of specific fact, shall not be deemed findings of fact, and shall not be deemed in compliance with this chapter.
(D) Expiration and time extensions.
(1) Expiration. In any case where a variance has not been used within one year after the granting, it shall become null and void.
(2) Time extensions. The Board of Adjustment shall hold a public hearing to consider the granting of a time extension of no more than one additional year as follows:
(a) Upon request by the applicant;
(b) When the request is filed in writing with the Community Development Department not less than 30 days prior to the expiration date of the original variance approval;
(c) When accompanied by a time extension fee in accordance with the fee schedule of the town; or
(d) Upon determination by the Board that there have been no changes in the circumstances or in the vicinity of the property or use which would render the previously approved variance inappropriate.
(E) Revocation.
(1) Revocation. The Board of Adjustment shall be authorized to hold a public hearing to consider the revocation of a variance previously granted in accordance with the provisions of the zoning ordinance. A written notice of the date, time, place and purpose of the hearing shall be served on the owner of the property for which the variance was granted by registered mail, return receipt requested, not less than 30 days prior to the date of such hearing.
(2) Findings. A variance may be revoked if, from the facts presented at the public hearing or by investigation, the Board makes an affirmative determination on any one of the following findings:
(a) That the variance was obtained by fraud; or
(b) That the variance granted is being exercised contrary to the conditions of approval of such variance or in violation of any applicable law, license, ordinance, permit or regulation.
(F) Appeals. An appeal from any final decision regarding a Board action shall be filed with Superior Court within 30 days of the decision. If no appeal is filed in writing within 30 days, the decision shall be considered final.
(Ord. 2020-02, passed 4-13-2020)