(A) Purpose. Variances provide relief for landowners who, due to some unique characteristic of their property, would suffer unnecessary hardship if these regulations are strictly enforced. Variances may be granted, but only as provided here.
(B) Procedure. The following is the typical procedure for an applicant to apply for and receive a variance.
(1) The applicant shall submit a properly completed variance application form, the required supporting materials, including a narrative evaluating the variance request under the evaluation criteria in division (C) below and the required application fee to Town Hall.
(2) The Town Clerk shall process the application and cause the application to be received by the Zoning Administrator.
(3) The Zoning Administrator shall determine whether the application is complete and sufficient for review. When an application is determined incomplete or insufficient, the Zoning Administrator shall provide written notice to the applicant indicating what information must be submitted for the review to proceed.
(4) After determining a variance application is complete and sufficient, the Zoning Administrator shall place a public hearing on the requested variance on the agenda of the next Board of Adjustment meeting for which the notice requirements of these regulations can be met (§ 155.080 of this chapter), and at which time will allow for its proper consideration.
(5) The Zoning Administrator or Town Clerk shall give notice of the public hearing in accordance with § 155.080 of this chapter.
(6) The Zoning Administrator shall prepare, or contract for preparation of, a report that describes the variance and the overall project, its site, its context and its compliance, or failure to comply, with the applicable requirements of these regulations. In preparation of the report, the Zoning Administrator may seek input from the police, fire, parks, sewer and water, streets, solid waste and other departments as well as other agency and service providers, including the state’s Department of Transportation, the local school district, utility service providers, the state’s Department of Environmental Quality and others. In the report, the Zoning Administrator shall propose findings of fact and a recommendation of approval, approval with conditions or denial of the proposal for the Board of Adjustment’s consideration.
(7) The Board of Adjustment shall conduct a hearing on the variance request. At that hearing, the Board of Adjustment shall review the particular facts and circumstances of the variance request and adopt findings of fact in support of its decision. If the Board finds the application complies with the evaluation criteria in division (C) below, it shall approve the variance. If the Board finds the application fails to comply, it shall deny the variance.
(8) Conditions may be attached to approval of any variance request, as provided in division (D) below; provided, the Board of Adjustment specifically identifies the basis for each condition.
(9) Consideration of a variance request may be tabled for no more than 35 calendar days.
(10) Within 15 working days after a decision on the variance is made, the Zoning Administrator, working on behalf of the Board of Adjustment, shall notify the applicant of the decision and any conditions attached to the approval.
(11) If all conditions required by the Board of Adjustment are met at the time the Board of Adjustment’s approval is issued by the Zoning Administrator, a permit shall be issued at that time.
(12) Upon the applicant demonstrating compliance with any conditions required by the Board of Adjustment to the Zoning Administrator, the permit associated with the variance request will be issued by the Zoning Administrator within 15 working days. This does not require the Zoning Administrator to permit any activity that is found to not comply with other applicable requirements.
(C) Evaluation criteria. The Board of Adjustment shall approve a variance only upon finding that the following criteria are substantially met or not relevant to the proposal:
(1) The need for a variance results from special conditions, such as physical limitations or unique circumstances related to the lot or parcel on which the variance is requested;
(2) Due to those special conditions, a literal enforcement of the provisions of these regulations will result in unnecessary hardship;
(3) Without a variance, strict compliance with the terms of these regulations will limit the reasonable use of the property and deprive the applicant of the rights enjoyed by other properties similarly situated in the district;
(4) The alleged hardship has not been created by action of the applicant, owner or occupants;
(5) Approval of the variance will not have a substantial adverse impact on neighboring properties;
(6) Approval of the variance will not be contrary to the public interest; and
(7) Approval of the variance will observe the spirit of these regulations and provide substantial justice.
(D) Conditions. Conditions may be imposed upon the approval of any variance, if:
(1) They are clearly designed to ensure compliance with one or more specific requirement of these or other adopted regulations the town has the ability to enforce;
(2) They are clearly designed to ensure the applicant complies with other laws or regulations;
(3) They are directly related to the evaluation criteria;
(4) They are roughly proportional to the anticipated impacts that may result from the reduced standard;
(5) The applicant offers to take specific actions in relation to the proposal that can be ensured through the implementation of a condition; or
(6) Conditions are deemed necessary to protect the public health, safety and general welfare.
(E) Approval period. Variance approvals are typically valid for three years from the date of approval by the Board of Adjustment, during which time all construction must be completed and compliance with the permit demonstrated. After this time, the use must remain in compliance with the Board of Adjustment approval and these regulations. However:
(1) A variance approval may be granted with a shorter approval period as deemed appropriate by the Board of Adjustment with a justifiable reason related to protecting public health and safety or to ensure compliance with these regulations or other applicable regulations or laws; and
(2) At the end of the approval period the Board of Adjustment may, at the request of the applicant, extend its approval for a mutually agreed-upon period of time. Any mutually agreed-upon extension must be in writing, dated and signed by at least three members of the Board of Adjustment and the applicant. The Board of Adjustment may issue more than one extension. For an approval to be extended, the applicant may be required to submit substantiating evidence justifying the request and showing good cause for extending the permit period.
(Ord. 329, passed 1-11-2016)