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(A) Appeal conditions.
(1) Any aggrieved person may appeal any final order or decision of the Land Use Administrator or other person charged with the enforcement of this chapter. An appeal is taken by filling a written notice of appeal with the Town Clerk.
(2) Persons who may appeal are:
(a) The owner of the property;
(b) The party who sough the decision;
(c) Any person who has standing as described in division (F) below; and/or
(d) The town.
(3) The written notice of appeal shall specify the grounds of the appeal. A notice of appeal shall be considered filed with the Land Use Administrator and the Board of Adjustment when delivered to the Town Clerk, and the date and time of filing shall be entered on the notice by the Town Clerk.
(B) Notice of appeal; time to appeal.
(1) The Administrator or official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision; if different from the owner.
(2) The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.
(3) An appeal must be taken by the owner within 30 days after the date of the receipt of the final written decision or order appealed from.
(4) The party who sought the decision (if not the owner) and any other person with standing to appeal under division (F) below must take their appeal within 30 days of actual or constructive notice of the decision.
(5) It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words “Zoning Decision,” “Appeal” or “Subdivision Decision” in letters at least six inches high and identifying the means to contact an official for information about the decision is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days.
(6) Posting of signs is not the only form of constructive notice. Additional public notice requirements for all quasi-judicial hearings are found in § 152.136.
(C) Duties of Administrator. Whenever an appeal is filed, the Administrator shall forthwith transmit to the Board of Adjustment, the person making the appeal (appellant) and the owner of the property if the owner is not the appellant, all the documents and exhibits constituting the record relating to the action appealed from.
(D) Stays.
(1) An appeal stays all actions by the Land Use Administrator seeking enforcement of or compliance with the order or decision appealed from, unless the Land Use Administrator certifies to the Board of Adjustment that (because of facts stated in the certificate) a stay would, in his, her, or their opinion, cause imminent peril to life or property.
(2) In that case, proceedings shall not be stayed except by order of the Board of Adjustment or a court, issued on application of the party seeking the stay, for due cause shown, after notice to the Land Use Administrator.
(E) Changes.
(1) The Board of Adjustment may reverse or affirm (wholly or partly), or may modify the appealed order, requirement, or decision, and shall make any order, requirement, decision, or determination that, in its opinion, ought to be rendered.
(2) To this end, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken.
(F) Other persons with standing to appeal.
(1) Any person meeting any of the following criteria:
(a) Has an ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed;
(b) Has an option or contract to purchase that is the subject of the decision being appealed; or
(c) Was an applicant before the decision-making board whose decision is being appealed.
(2) Any other person who will suffer special damages as the result of the decision being appealed;
(3) An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal; and/or
(4) The town, when Board of Commissioners believes that the BOA improperly granted a variance from or made a decision that is otherwise inconsistent with the proper interpretation of this chapter.
(Ord. passed 12-20-2001) Penalty, see § 152.999
(A) An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the Land Use Administrator in the Planning Department. Applications shall be handled in the same manner as applications for special use permits, i.e., in conformity with the provisions of §§ 152.040 through 152.062 and 152.095 through 152.102.
(B) A variance may be granted the Board of Adjustment if it concludes that unnecessary hardships for the applicant would result from carrying out the strict letter of this chapter upon a showing of all of the following.
(1) Unnecessary hardship would result from the strict application of this chapter. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(2) The hardship results from conditions that are peculiar to the property such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis from granting a variance.
(3) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that justify the granting of a variance shall not be regarded as a self-created hardship.
(4) The requested variance is consistent with the spirit, purpose, and intent of this chapter, such that public safety is secured, and substantial justice is achieved.
(C) In granting variances, the Board of Adjustment may impose such reasonable conditions to ensure that the use of the property will be as compatible as practicable with the surrounding properties.
(D) A variance may be issued for an indefinite duration or for a specified duration.
(E) The nature of the variance and any attached conditions shall be entered on the face of the zoning permit, or in the alternative, the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this chapter.
(Ord. passed 12-20-2001) Penalty, see § 152.999
(A) An application for a special exception permit shall be submitted to the Board of Adjustment by filing a copy of the application with the Land Use Administrator.
(C) The Board of Adjustment may issue a special exception permit if, in addition to any other findings required by this section, that issuance of the permit will not:
(1) Create a threat to the public safety; or
(2) Adversely affect the value of adjoining or neighboring properties. If the applicant presents a petition signed by all of the property owners entitled to receive notice of the hearing for the application (pursuant to § 152.136) and if said petition states that such property owners believe that their property values will not be adversely affected by the proposed use, then the petition shall be sufficient evidence from which the Board of Adjustment may (but shall not be required to) make its finding. The Board of Adjustment may also make its finding based on other competent evidence.
(D) The Board of Adjustment may issue a special exception permit to allow a reduction of up to 50% in the required distances that buildings must be set back from lot boundary lines (see § 152.283) provided that:
(1) The reduction may be permitted only for buildings on lots used for conforming residential purposes in residential districts where the building in question has existed for at least three years prior to the application for the special exception permit;
(2) The reduction may not in any case:
(a) Allow a building to be located closer to a lot boundary line than a distance equal to one-half of the minimum building separation requirement established by the State Building Code; or
(b) Allow a building to be located in such proximity to a pre-existing building so as to violate the minimum building separation requirement of the State Building Code.
(3) The reductions allowed under this division (D) are only for setbacks from lot boundary lines, and not for setbacks from street right-of-way lines.
(E) The Board of Adjustment may issue a special exception permit to authorize a structure to encroach upon a setback required under § 152.283 if the Board finds that:
(1) The proposed encroachment results from an addition to, or an extension of, an existing residential structure in a residential district that already is nonconforming with respect to the requirements of § 152.283; and
(2) The proposed addition or extension will not encroach upon any required front, rear, or side yard to a greater extent than the existing structure on that lot.
(Ord. passed 12-20-2001) Penalty, see § 152.999
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