§ 156.118  DEVIATION OR VARIANCE FROM COMMERCIAL DESIGN AND DEVELOPMENT STANDARDS AND SITE PLAN REQUIREMENTS.
   In order to encourage creative design, to avoid undue hardship, and to expedite the zoning approval process for developments within the town, deviation from any of the design and development or site plan requirements contained within this subchapter may be approved as follows.
   (A)   Minor deviation. The Zoning Administrator is authorized to grant a minor xdeviation from the standards of this subchapter subject to the following.
      (1)   Any request for deviation from a standard set forth in this chapter including, but not necessarily limited to screening or buffer requirements, planting requirements, spacing requirements, landscaping material, building design and parking lot layout shall be granted only after the applicant has demonstrated that:
         (a)   The deviation was a result of unique conditions of the property; or
         (b)   The deviation will result in a project that is at least equal to or better than what would be accomplished under the strict application of this subchapter.
      (2)   Before granting a minor deviation the Zoning Administrator shall reasonably determine that granting the deviation:
         (a)   Does not and will not violate the spirit and intent of the ordinance; and
         (b)   Does not and will not adversely affect the rights of other property owners in any material manner.
      (3)   A minor deviation may not deviate by more than 10% from any of the measurable standards of this subchapter.
      (4)   The authority given to the Zoning Administrator to grant the deviation shall be construed to be permissive and not mandatory and the Zoning Administrator may decline to make the deviation. In the event this occurs, the applicant shall have the right to request a variance from the Board of Adjustment.
   (B)   Major deviation. The Town Council may grant a major deviation from the standards of this subchapter through the issuance of a special use permit. Issuance of special use permits shall be in accordance with the procedures set forth in § 156.155 as well as the procedures set forth below.
      (1)   Applications.  In addition to the requirements of § 156.155, a complete application shall include all of the following:
         (a)   A complete explanation of the purpose and extent of the request including sealed site plans and architectural renderings when applicable or requested by the Zoning Administrator;
         (b)   Documentation containing facts which will be used to support the petition, including but not limited to deed restrictions, proposed homeowners’ association documents, and statements from adjacent property owners (where applicable).
      (2)   Town Council review. The Town Council shall review the special use permit application for a major deviation in the context of the spirit and intent of the requirements of this subchapter; existing, proposed and planned development in the immediate area; and all other applicable regulations affecting the property.
      (3)   Required general findings. No special use permit shall be approved by the Town Council unless the following general findings of fact are made in addition to those listed in § 156.155 by the Town Council concerning the proposed special use:
         (a)   The proposed development represents a design in site and/or architecture which will result in a development that is equivalent to or superior to that achievable under the applicable regulations;
         (b)   The proposed development will be compatible with and will not substantially injure the value of adjoining property; and
         (c)   The proposed development is consistent with the intent of this subchapter.
      (4)   Conditions.  Conditions may relate to parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, intensity of site development, the timing of development, and other matters the Council may find appropriate or the applicant may propose.  The applicant will have a reasonable opportunity during the hearing to consider and respond to any additional conditions or requirements prior to final action by the Town Council.
(Ord. 04-21, passed 10-6-2004, § 42.2.9; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 21-01, passed 6-2-2021)