In order to encourage creative design, to avoid undue hardship and to expedite the zoning approval process for developments within the town, a waiver of any of the architectural or site design requirements contained within this article may be approved as follows.
(A) Minor waiver. The Zoning Administrator is authorized to grant a minor waiver from the standards of this article subject to the following:
(1) Any request for a waiver of a standard set forth in the ordinance including, but not necessarily limited to, height requirements and limitation, yard requirements, parking requirements, screening or buffer requirements, planting requirements, ratio requirements, density requirements, spacing requirements and signage 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 article.
(2) Before granting a minor waiver the Zoning Administrator shall reasonably determine that granting the waiver:
(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 waiver may not deviate by more than 10% from any of the measurable standards of this article.
(4) The authority given to the Zoning Administrator to grant the waivers shall be construed to be permissive and not mandatory and the Zoning Administrator may decline to make the waiver. In the event this occurs, the applicant shall have the right to request a special exception permit from the Board of Adjustment granting a major waiver to these requirements.
(5) Nothing in this section shall be construed as limiting the Zoning Administrator's duties and rights under this article or an applicant's right to appeal the decision of the Zoning Administrator to the Board of Adjustment.
(B) Major waiver. The Board of Adjustment is authorized to grant a major waiver from the standards of this article through the issuance of a special exception permit. Application and issuance of the permits shall be governed as follows.
(1) Applicants. A request for a special exception permit will be considered only if requested by the owner of the property in question or an authorized agent of the property owner.
(2) Applications. Applications for all special exception permits or amendments to any approved special exception permit must be filed with the Zoning Administrator. Applications which are not complete shall be returned to the applicant, with a notation of the deficiencies in the application. A complete application will include all of the following:
(a) A completed application form signed by all of the property owners of the property or land proposed for the permit or a completed application form signed by the developer along with an affidavit signed by all property owners giving the applicant the permission to pursue the permit and to bind the property to the proposal and to conditions which the Board might impose;
(b) A complete explanation of the purpose and extent of the requested waiver including sealed site plans and architectural renderings when applicable or requested by the Zoning Administrator or the Board of Adjustment;
(c) 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);
(d) All appropriate fees;
(e) A complete listing of all owners of adjacent property, their addresses and tax identification numbers; and
(f) Any other information deemed by the Zoning Administrator or the Board of Adjustment to be necessary for sufficient review of the application.
(3) Staff review. All applications for a special exception permit shall be reviewed by the Zoning Administrator and, where necessary, the Technical Review Committee prior to Board of Adjustment review. The Zoning Administrator shall determine the number of copies to be submitted by the petitioner to ensure that there are sufficient copies to send to the Board, the Technical Review Committee and all other appropriate agencies for review and comment. The applicant shall submit a completed application no later than 15 working days prior to the board meeting at which the petition is to be heard. If the application is found to be incomplete, the developer shall be notified and the petition rejected.
(4) Cooperation. The developer is strongly encouraged to work closely with staff and neighboring property owners before and during the application and review process to minimize delays and address concerns which may arise.
(5) Board review. The Board of Adjustment shall review the application for a waiver in the context of the spirit and intent of the requirements of this article; existing, proposed and planned development in the immediate area; similar properties and situations in other areas of the town's jurisdiction; and all other applicable regulations affecting the property.
(6) Required general findings. No special exception permit shall be approved by the Board of Adjustment unless the following general findings of fact are made 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 article.
(7) Withdrawal or amendment of a special exception permit application. An application for a special exception permit may be withdrawn or amended as follows.
(a) A petition filed according to this section may be withdrawn by the petitioner at any time up to the scheduling of the date of the public hearing on the petition.
(b) If the petitioner wishes to withdraw the petition after the scheduling of the public hearing, the petitioner may file a request to withdraw with the Zoning Administrator. On the date scheduled for the hearing, the Board of Adjustment may approve the request for withdrawal if it finds that there are substantial circumstances favoring the withdrawal and that the withdrawal will not be detrimental to the interests of citizens affected by the petition.
(c) Once the petition has been filed, the petitioner shall not be allowed to amend it, except by request to the Zoning Administrator no later than three weeks prior to the scheduled public hearing date. No changes to the petition shall be accepted in the intervening weeks prior to the public hearing. No changes to the petition shall be made at the hearing, although potential changes proposed by the petitioner, Board of Adjustment and other interested parties may be presented at the hearing and considered by the Board of Adjustment during their deliberations.
(d) If the Board of Adjustment deems any amendment to be a substantial change to the petition, it shall defer action on the petition for 30 days to allow interested parties the opportunity to comment on the amendment to the petition.
(e) If the Board of Adjustment deems any amendment to be an intensification of the petition, it shall call for a new public hearing.
(8) Hearing.
(a) A special exception permit hearing will be conducted as a quasi-judicial hearing before the Board of Adjustment.
(b) The applicant has the burden of producing competent, material and substantial evidence in support of the application.
(9) Decision. In considering an application for a special exception permit, the Board of Adjustment may attach reasonable and appropriate conditions and safeguards to the location, nature and extent of the proposed use and its relation to surrounding property, for the purpose of insuring that the conditions of permit approval will be complied with and any potentially injurious effect of the special use on adjoining properties, the character of the neighborhood or the health, safety and general welfare of the community will be minimized. The 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 Board of Adjustment may find appropriate or the applicant may propose. The applicant will have a reasonable opportunity to consider and respond to any additional conditions or requirements prior to final action by the Board of Adjustment.
(10) Effect of approval. An approved application for a special exception permit and all conditions which may be attached thereto are binding on the property.
(11) Amendment to an approved special exception permit.
(a) Any change to a development approved by special exception permit shall require an amendment to the special exception permit by the Board of Adjustment.
(b) The owner of property which is subject to an approved special exception permit may petition for an amendment of the special exception permit and accompanying conditions by following the procedures applicable to initiation of new special exception permits.
(c) Evidence presented at the hearing on the proposed amendment will be limited to the effect of the proposal on the original special exception permit, any plans or conditions which were a part of the original special exception permit and the present standards and requirements in this article.
(12) Appeals. Any petition for review by Superior Court shall be filed with the Clerk Of Superior Court within thirty days after a written copy of the decision of the Board of Adjustment is filed in the office of the Zoning Administrator or is delivered to every aggrieved party who has filed a written request for the copy with the Clerk at the time of the hearing of the case, whichever is later.
(13) Revocation of a special exception permit.
(a) A special exception permit may be revoked by the Board of Adjustment if it determines that the applicant is exceeding the authority granted by the permit or fails to meet the conditions attached thereto.
(b) Action to revoke a permit shall be taken by the Board of Adjustment after receiving a request from staff. Such a request shall be in writing and shall declare that the applicant and all property owners within the development, as recorded at the register of deeds office, have been notified at least ten days before the meeting of the pending action and the date, time and place of the Board of Adjustment meeting at which the request will be made. The applicant and property owners shall have the right to appear before the Board of Adjustment at the meeting and show cause why the Board of Adjustment should not revoke the permit. Notification shall be deemed given when written notice is sent by first class mail to the property owner at the address shown on the most recent property tax records and one or more signs are posted in prominent locations on the subject site reasonably calculated to give notice of the action.
(14) Expiration of a special exception permit.
(a) Approval of a special exception permit shall confer upon the developer all vested rights as set forth in this article.
(b) In order for a special exception permit to remain in effect for a particular development, a valid building permit must be issued for construction within the time period vested. If at any time after this date, construction has not been completed and no valid building permits are outstanding for construction within the development, the special exception permit shall expire. No further construction may occur within the development until a new special exception permit has been issued by the Board of Adjustment. Application for a new special exception permit shall follow the procedures outlined in this section.
(2003 Code, § 8-3.9.9) (Updated 2009)