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The Board of Adjustment shall have the following powers and duties:
(A) Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Building Official in the enforcement of this chapter.
(1) Hearings; appeals; notice. Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer or bureau of the Town Council affected by any decision of the Building Official in the interpretation of any portion of this chapter. The appeal shall be taken within a reasonable time not to exceed 60 days by filing with the Building Official and with the Board of Adjustment a notice of appeal, specifying the grounds. The Building Official shall forthwith transmit to the Board of Adjustment all papers constituting the record upon which the action appealed from was taken. The Board of Adjustment shall fix a time for hearing of the appeal within 30 days and give public notice at least 15 days in advance of public hearing as well as due notice to the parties in interest, and decide the appeal within a reasonable time. At the hearing any party may appear in person or by agent or attorney.
(2) Stay of proceeding. An appeal stays all proceedings in furtherance of the action appealed from unless the Building Official from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal is filed with him or her that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life and property. In the case proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Building Official from whom the appeal is taken and on due cause shown.
(B) Variances; conditions governing applications; procedures. To authorize upon appeal in specific cases the variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, the enforcement of the provisions of this chapter would result in unnecessary hardship. A variance from the terms of this chapter shall not be granted by the Board of Adjustment until:
(1) A written application for a variance is submitted demonstrating that:
(a) Special conditions and circumstances exist that are peculiar to the land, structure or building involved and are not applicable to other lands, buildings or structures in the same district;
(b) 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;
(c) The special conditions and circumstances referred to in division (B)(1)(a) above do not result from the actions of the applicant;
(d) Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or buildings in the same district; and
(e) No nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.
(2) Notice of public hearing shall be given as specified for special exceptions;
(3) A courtesy notice shall be mailed to the property owners of record within a radius of 500 feet; however, failure to mail or receive the courtesy notice shall not affect any action or proceedings taken under this chapter;
(4) Any party may appear in person, or be represented by an agent or by attorney at the public hearing;
(5) The Board of Adjustment shall make findings whether the requirements of division (B)(1)(a) above have been met by the applicant for a variance;
(6) The Board of Adjustment shall determine whether the reasons set forth in the application justify the granting of the variance, and whether the variance is the minimum variance that will make possible the reasonable use of the land, building or structure;
(7) The Board of Adjustment shall further determine whether the granting of the variance will be in harmony with the general purpose and intent of this chapter or will not be injurious to the neighborhood, or otherwise detrimental to the public welfare;
(8) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of the conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable as provided by this chapter; and
(9) Under no circumstances shall the Board of Adjustment grant a variance to permit a use not generally or by special exception permitted in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in that district.
(C) To hear and decide such special exceptions as the Board of Adjustment is specifically authorized to pass on under the terms of this Article XV; to decide such questions as are involved in the determination of when special exceptions should be granted; and to grant special exceptions with appropriate conditions and safeguards or to deny special exceptions when not in harmony with the purpose and intent of this act or any ordinance enacted under the authority of this act.
(1) In granting any special exception, the Board shall find that such grant will not adversely affect the public interest.
(2) In granting any special exception, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with these regulations and any ordinance enacted under these regulations. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of these regulations.
(3) The Board of Adjustment may prescribe a reasonable time limit within which the action for which the special exception is required shall be begun or completed or both.
(4) In granting any special exception, the Board of Adjustment shall find that such grant will not adversely affect the public interest, and the Board of Adjustment shall specifically find the following:
(a) The special exception is consistent with the goals, objectives and policies of the Comprehensive Plan.
(b) The special exception is consistent with the intent of the zoning district within which the special exception is sought.
(c) The special exception does not create any adverse impacts to adjacent property through the creation of noise, light, vibrations, traffic, utility requirements, or stormwater runoff that would not have been created had the property been developed for a principal use permitted in the applicable zoning district.
(d) The special exception will not create any unusual police, fire or emergency services requirements.
(e) That the special exception meets all the requirements of the zoning district in which it is located, such as lot requirements, building setback requirements, lot coverage, height, buffer yards, off-street parking, signs, storage, landscaping, etc.
(D) Applicants. All hearings for special exceptions or variances before the Board of Adjustment shall be initiated by:
(1) The owners of at least 75% of the property described in the application;
(2) Tenants, with owners’ sworn-to consent;
(3) Duly authorized agents evidenced by a written power of attorney;
(4) Town Council;
(5) Planning and Zoning Board; or
(6) Any department or agency of the town.
(E) Decisions of the Board of Adjustment.
(1) In exercising any of the powers given in this section, the Board of Adjustment may, so long as the action is in conformity with the terms of this chapter, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make the order, requirement, decision or determination as should be made, and to that end shall have all of the powers of the Building Official from whom the appeal was taken.
(2) The concurring vote of four members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of the Building Official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to effect any variation in the application of this chapter.
(2000 Code, § 66-93) (Ord. 75-01, passed 7-14-1975; Ord.99-02, passed 3-23-1999; Ord. 2012-12, passed 11-27-2012)