(A) Where evidence may support a petitioner's challenge to these regulations, in that extraordinary hardship or practical difficulty may result from strict compliance with these regulations, and/or that the purpose of these regulations may be served to a greater extent by an alternative proposal, innovative concept plan or cluster development, the proposed plan shall be referred to the Plan Commission.
(B) The Plan Commission may grant a waiver to these development regulations so that substantial justice may be done and the public interest secured; provided that:
(1) Such waiver shall not have the effect of nullifying the intent and purpose of these regulations; and
(2) The Plan Commission shall not grant a waiver unless it shall make findings in writing based upon the evidence presented to it in each specific case that the following criteria have been affirmatively determined:
(a) If granted, the waiver will not be detrimental to public safety, health or welfare, or injurious to other property;
(b) Except for innovative design concept, the conditions upon which the request for a waiver is based on the uniqueness of the property for which waiver is sought, and are not applicable generally to other property;
(c) Due to the peculiar physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from mere inconvenience, if the strict letter of these regulations is carried out.
1. Financial hardship shall not constitute grounds for a waiver.
2. However, innovative design concept and/or clustering of structures to minimize infrastructure costs and design around natural features may be considered for a waiver to the strict application of the subdivision code;
(d) The waiver shall comply substantially with the provisions of the comprehensive plan.
(C) A petition for waiver shall be submitted in writing by the petitioner prior to the Plan Commission's hearing for approval of the preliminary plat.
(1) The petition shall state fully the reasons for the application and the facts relied upon by the petitioner.
(2) Where the waiver has an impact on design and construction of public facilities, all appropriate public agencies shall be given ample time to investigate the petition and comment in writing to the Plan Commission.
(3) In approving waivers, the Plan Commission may require such conditions as will, in its judgment, substantially secure the objectives of the subdivision regulations.
(4) Where the waiver requested involves innovative design concept or clustering of structures, additional drawings, site plan attachments, support documentation and/or qualified opinions may be required.
(Ord. 03-27, 856-60, passed 12-22-2003)