(A) Authorization by Board of Adjustment.
(1) The Board of Adjustment may authorize, upon appeal, such variances from the terms of this chapter as shall not be contrary to the public interest.
(2) The purpose of any variance shall be to modify the strict application of the requirements of this chapter where it can be shown that by reason of exceptional topography or other extraordinary or exceptional circumstances, literal enforcement of the terms of this chapter will result in an unnecessary hardship to the extent that the property might be prohibited from being used in a manner similar to other property in the same district.
(Prior Code, § 10-11-1)
(B) Rules and procedures.
(1) Denial of building permit. Appeals seeking a variance shall be made only after the denial of a building permit by the Administrative Official. The following rules and procedures shall govern the process of such appeals.
(a) The applicant shall submit to the Administrative Official a request for variance on forms provided for this purpose, along with a copy of the denial of the building permit.
(b) The Administrative Official shall, upon receipt of a request for variance, transmit the request, a copy of the denial and any other pertinent information to the Board of Adjustment for its consideration.
(c) The Board of Adjustment shall fix a reasonable time and place for a public hearing. Public notice shall be given of all hearings and shall consist of the posting of a sign by the designated town official on the affected property at least five days prior to the date of the hearing and one publication of a notice by the town in a newspaper of general circulation at least five days prior to the hearing. Both the sign and the newspaper notice shall identify the applicant, shall briefly state the nature of the appeal of the variance sought and shall give the date, time and place of the hearing. All hearings shall be open to the public. Due notice of the hearing shall also be given to all parties of interest, including the Administrative Official and the Planning Commission Chairperson.
(d) The Board of Adjustment shall vote on the decision. The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Administrative Official.
(e) The Board of Adjustment shall render a written decision on each case heard within 30 days of the hearing. Where the request for variance is approved, such written decision shall demonstrate the following:
1. Exceptional topography, or extraordinary or exceptional circumstances exist which are peculiar to land, structures or buildings involved which are not applicable to other lands, structures or buildings in the same district;
2. Owing to extraordinary circumstances, literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;
3. The extraordinary circumstances were not created by the owner of the property and do not represent a general condition of the district in which the property is located;
4. The variance will not authorize a use other than those specifically enumerated in the zoning district in which the variance is sought;
5. The circumstances found to constitute a hardship cannot be practically corrected;
6. The variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure;
7. The granting of the variance would not be out of harmony with the intent and purpose of this chapter or the general plan of the town, or any portion thereof; and
8. The variance would not injure the land value, or use of, or prevent the access of light and air to the adjacent properties or to the area in general, or would not be detrimental to the health, safety and welfare of the public.
(2) Non-conforming use not grounds for issuance. Existence of a non-conforming use of neighboring lands, structures or buildings in the same district, or of non-conforming use of lands, structures or buildings in other districts, shall not be considered grounds for the issuance of a variance.
(3) Request denied. Where the request for variance is denied, the written decision must be accompanied by reasons therefor, and be based on findings of fact.
(4) Request approved.
(a) The Board of Adjustment shall cause a description of each variance granted to be filed in the office of the County Recorder with a legal description of the affected property.
(b) The description shall include the nature of the variance, any time limitations and any special conditions imposed by the Board of Adjustment.
(Prior Code, § 10-11-2)
(C) Diagram. The following diagram applies to the provisions of this chapter:
Proceedings Before Board of Adjustment on Variances
|
Submittal of application |
Transmittal to Board |
Public hearing |
Vote on decision |
Written decision from Board within 30 days |
Recording of variance |
(Prior Code, § 10-11-3)
(Ord. 2001-02, passed 10-3-2001)