(A) Administrative review. The Board of Adjustment shall hear and decide appeals from any decision or determination made by the Town Manager in the enforcement of this chapter.
(B) Variances. The Board of Adjustment shall have the power to authorize, in specific cases, minor variances from the terms of this chapter as will not be contrary to the public interests where, owing to special conditions, a literal enforcement of this chapter will result in practical difficulties or unnecessary hardship, so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
(1) Application for a variance shall be made on the proper form obtained from the Town Manager and shall include information required by the Planning Department, at a minimum:
(a) A site plan, drawn to scale, indicating the property lines of the parcel upon which the use is proposed; and existing or proposed structures; parking areas and other built-upon areas; surface water drainage;
(b) A complete and detailed description of the proposed variance, together with any other pertinent information which the applicant feels would be helpful to the Board of Adjustment in considering the application; and
(c) The Town Manager shall notify in writing each local government having jurisdiction in the watershed. The notice shall include a description of the variance bring requested. Local governments receiving notice of the variance request may submit comments to the Town Manager prior to a decision by the Board of Adjustment. The comments shall become a part of the record of proceedings of the Board of Adjustment.
(2) Before the Board of Adjustment may grant a variance, it shall make the following 3 findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
(a) That there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter. In order to determine that there are practical difficulties or unnecessary hardships, the Board must find that the 5 following conditions exist:
1. If he or she complies with the provisions of this chapter, the applicant can secure no reasonable return from, nor make reasonable use of, his or her property. Merely providing that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the Board in granting an variance. Moreover, the Board shall consider whether the variance is the minimum possible deviation from the terms of this chapter that will make possible the reasonable use of his or her property;
2. The hardship results from the application of this chapter to the property rather than from other factors such as deed restriction or other hardship;
3. The hardship is due to the physical nature of the applicant's property, such as its size, shape or topography, which is different from that of neighboring property;
4. The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates this chapter, or who purchases the property after the effective date of this chapter, and then comes to the Board for relief; and
5. The hardship is peculiar to the applicant's property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice.
(b) That the variance is in harmony with the general purpose and intent of this chapter and preserves its spirit; and
(c) That in the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The Board shall not grant a variance if it finds that doing so would in any respect impair the public health, safety or general welfare.
(3) In granting the variance, the Board may attach the conditions regarding the location, character and other features of the proposed building, structure or use as it may deem advisable in furtherance of the purpose of this chapter. If a variance for the construction, alteration or use of property is granted, the construction, alteration or use shall be in accordance with the approved site plan.
(4) The Board of Adjustment shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
(5) A variance issued in accordance with the section shall be considered a watershed protection permit and shall expire if a building permit or watershed occupancy permit for the use is not obtained by the applicant within 6 months from the date of the decision.
(6) If the application calls for the granting of a major variance, and if the Board of Adjustment decides in favor of granting the variance, the Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include:
(a) The variance application;
(b) The hearing notices;
(c) The evidence presented;
(d) Motions, offers of proof objections to evidence and rulings on them;
(e) Proposed findings and exceptions;
(f) The proposed decision, including all conditions proposed to be added to the permit.
(7) The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
(a) If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
1. The property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted; and
2. The variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. If the Commission approves the variance as proposed, the Board shall prepare a final decision granting the proposed variance. If the Commission approves the variance with conditions and stipulations, the Board shall prepare a final decision, including the conditions and stipulations, granting the proposed variance.
(b) If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
1. The property owner can secure a reasonable return from and make a practical use of the property without the variance; or
2. The variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed. The Commission shall prepare a Commission decision and send it to the Board of Adjustment. The Board shall prepare a final decision denying the variance as proposed.
(Ord. passed - -)