(A) Administrative Review. The Watershed Board of Adjustment shall hear and decide appeals from any decision or determination made by the Administrator in the enforcement of this chapter.
(B) Variances. The Watershed 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) The Administrator shall notify and allow a reasonable comment period for all other local governments having jurisdiction in the designated watershed where the variance is being considered.
(2) Applications for a variance shall be made on the proper form obtainable from the Administrator and shall include the following information:
(a) A site plan, drawn to a scale of at least one inch to 50 feet, indicating the property lines of the parcel upon which the use is proposed; any existing or proposed structures; parking areas and other built-upon areas; surface water drainage. The site plan shall be neatly drawn and indicate north point, name and address of person who prepared the plan, date of original drawing, and an accurate record of any later revisions;
(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 Watershed Board of Adjustment in considering the application; and
(c) The Administrator shall notify in writing each local government having jurisdiction in the watershed. Notice shall include a description of the variance being requested. Local governments receiving notice of the variance may, within 30 days from the date notice is issued, submit comments to the Administrator prior to a decision by the Watershed Board of Adjustment. The comments shall become a part of the record of proceedings of the Watershed Board of Adjustment.
(3) Before the Watershed Board of Adjustment may grant a variance it shall make the following three findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
(a) There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the chapter. In order to determine that there are practical difficulties or unnecessary hardships the Watershed Board of Adjustment must find and conclude that the five following conditions exist:
1. If the applicant complies with the provisions of the chapter, the applicant can secure no reasonable return from, nor make reasonable use of, his or her property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the granting of a variance. Moreover, the Watershed Board of Adjustment shall consider whether the variance is the minimum possible deviation from the terms of the chapter that will make possible the reasonable use of the applicant’s property;
2. The hardship results from the application of the chapter to the property rather than from other factors such as deed restrictions 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 the chapter, or who purchases the property after the effective date of the chapter and then comes to the Watershed Board of Adjustment for relief; and
5. The hardship is particular 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) The variance is in harmony with the general purpose and intent of the chapter and preserves its spirit.
(c) In the granting of the variance the public safety and welfare have been assured and substantial justice has been done. The Board of Adjustment shall not grant a variance if it finds that doing so would in any respect impair the public health, safety or general welfare.
(4) In granting the variance, the Watershed Board of Adjustment may attach 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, construction, alteration or use shall be in accordance with the approved site plan.
(5) The Watershed 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.
(6) A variance issued in accordance with this 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 six months from the date of the decision.
(7) If the application calls for the granting of a major variance, and if the Watershed Board of Adjustment decides in favor of granting the variance, the Watershed Board of Adjustment 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; and
(f) The proposed decision, including all conditions proposed to be added to the permit.
(8) The preliminary record shall be sent to the State 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 Board of Adjustment. If the Commission approves the variance as proposed, the Watershed Board of Adjustment 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 such 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 or make a practical use of the property without a 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 Watershed Board of Adjustment. The Board shall prepare a final decision denying the variance as proposed.
(Ord. passed 5-16-1994; Ord. passed 7-15-2002)