(A) Purpose and intent. When the Plan Commission finds that an extraordinary hardship or practical difficulty would result from strict compliance with §§ 165.385 through 165.401 and 165.415 through 165.424 and/or a regulation clearly does not apply to a proposed development, and/or the purposes of these regulations may be served to a greater extent by an alternative proposal; then the Plan Commission may approve a design standard waiver. However, the design standard waiver shall not be used to subvert the intent and purpose of these regulations, or solely for the purposes of financial benefit to the developer.
(B) Prerequisites.
(1) Primary plat application. The applicant shall only file a design standard waiver application in conjunction with a primary plat, secondary plat or replat application.
(2) Design standards. The waiver shall be in regard to a regulation in §§ 165.385 through 165.401 and 165.415 through 165.424, and shall not be a request for relief from §§ 165.260 through 165.294, 165.305 through 165.312, 165.325 through 165.332 and 165.345 through 165.353. Any relief request from §§ 165.260 through 165.294, 165.305 through 165.312, 165.325 through 165.332 and 165.345 through 165.353 shall be subject to the variance procedure with the Board of Zoning Appeals.
(C) Application.
(1) Filing deadline. The applicant shall apply for a design standard waiver in conjunction with the applicant’s primary plat application.
(2) Supportive information. The application shall include the necessary documentation as identified on the application form and/or as determined by the Zoning Administrator based on specific circumstances of the particular project. The application shall include, but not be limited to, the following documents:
(a) Design standard provision(s). The application shall identify the design standard provision(s) that is(are) being requested to be waived or reduced, the justification for the request, and a statement as to why the waiver will not subvert or diminish the intent and purpose of this chapter, particularly the subdivision type’s intent and the applicable design standards; and
(b) Additional information. Additional information may be required by the Zoning Administrator when necessary for the Plan Commission evaluate the requested design standards waiver.
(D) Fees. The applicant shall submit the required application fee at the time the waiver from design standards application is submitted.
(E) Zoning Administrator.
(1) Complete submittal. Once the Zoning Administrator has determined that the applicant has made a complete submittal, the Zoning Administrator shall:
(a) Docket number. Assign the item a docket number;
(b) Agenda. Place the item on an agenda of the Plan Commission; and
(c) Notification. Inform the applicant of the time, date and place of the meeting.
(2) Inspection. The Zoning Administrator may inspect at any reasonable time the site and any structure thereon if it relates to the requested design standard waiver application.
(3) Department report. The Zoning Administrator will prepare a staff report outlining its findings with respect to the design standard waiver request.
(F) Plan Commission.
(1) Public notice.
(a) Responsibility. The applicant shall be responsible for publishing and mailing the public notices.
(b) Proof. The applicant shall be responsible for returning proof of publishing and mailing of notices to the Zoning Administrator. Failure to submit proof of notice prior to the Plan Commission meeting may result in the application being continued to the following month.
(2) Attendance. The applicant or the applicant’s representative is required to be present at the Plan Commission meeting to address and discuss comments and concerns posed by the Plan Commission. Failure to appear may result in denial of the request, continuance or other appropriate action.
(3) Public hearing. A public hearing shall be held in accordance with the Plan Commission rules of procedure. The public hearing may be held concurrently with the public hearing for the primary plat or replat.
(4) Review of application. At their regularly scheduled meeting, the Plan Commission shall review and consider:
(a) The application and supportive material submitted by the applicant;
(b) The primary plat;
(c) The testimony of the applicant;
(d) Relevant evidence presented by other persons;
(e) The Comprehensive Plan;
(f) Any applicable provisions of this chapter;
(g) Any applicable requirements of the city’s construction standards;
(h) The Zoning Administrator report; and
(i) Such other additional information as may be necessary or required by the Plan Commission to evaluate the application.
(5) Findings of fact.
(a) Generally. The Plan Commission shall not approve a design standard waiver unless it makes favorable findings based upon the evidence presented to it in each specific case. Specifically, the findings shall include that:
1. The granting of the design standard waiver shall not be detrimental to the public safety, health or welfare, or otherwise be injurious to other property;
2. The conditions upon which the request for a design standard waiver is based are unique to the property for which the design standard waiver is sought;
3. Because of the particular circumstances, physical surroundings, efforts to conserve natural features or topographical conditions of the specific property involved, a particular hardship or practical difficulty to the property owner would result, as distinguished from a mere inconvenience, if the strict letter of these regulations is enforced. A financial hardship or difficulty on its own shall not constitute grounds for a design standard waiver; and
(b) Certification.
1. Signed. The findings document, whether finding in the affirmative or not, shall be signed by the President of the Plan Commission and be filed and recorded with the plat.
2. Notification. The Plan Commission shall furnish the applicant with a copy of its decision.
(6) Decision. The Plan Commission shall either:
(a) Approve the application;
(b) Approve the application with conditions and/or commitments;
(c) Deny the application; or
(d) Continue the application to a definite future meeting date.
(7) Commitments.
(a) Acceptance. In conjunction with the approval of a design standard waiver, the Plan Commission may permit or require the applicant to make written commitments that remedy concerns.
(b) Form. The applicant shall prepare the commitment instrument, if applicable, in a form approved by the city’s Attorney. The applicant and the President of the Plan Commission shall sign the commitment instrument.
(c) Recording. The applicant shall record the commitment instrument in the County Recorder’s office with the plat. The applicant shall deliver receipt and a copy of the recorded commitment instrument to the Zoning Administrator.
(d) Modification or termination. A commitment made under this section may be modified or terminated only by a decision of the Plan Commission made at a public hearing. Public notice of the public hearing shall be provided per the Plan Commission rules of procedure. The applicant shall prepare and record a commitment modification instrument or commitment termination instrument in the same manner required for a commitment instrument. A modified commitment shall be enforced in the same manner as any other commitment.
(e) Enforcement. The city may enforce any commitment the Plan Commission has accepted as if the commitment were a standard of this chapter.
(8) Conditions of approval.
(a) Requirement. In conjunction with the approval of a design standard waiver, the Plan Commission may impose conditions of approval concerning the use or development of the parcel that will, in its judgment, substantially secure the objectives of these regulations.
(b) Form. The Zoning Administrator shall prepare the conditions of approval instrument in a form approved by the City Attorney. The President of the Plan Commission shall sign the conditions of approval instrument.
(c) Recording. The applicant shall record the conditions of approval instrument in the County Recorder’s office with the plat. The applicant shall deliver receipt and a copy of the recorded conditions of approval instrument to the Zoning Administrator.
(d) Modification or termination. A condition of approval imposed under this section may be modified or terminated only by a decision of the Plan Commission made at a public hearing. Public notice of the public hearing shall be provided per the Plan Commission rules of procedure. The applicant shall prepare and record a conditions of approval modification instrument or conditions of approval termination instrument in the same manner required for a conditions of approval instrument. A modified condition of approval shall be enforced in the same manner as any other condition of approval.
(e) Enforcement. The city may enforce any condition of approval the Plan Commission has imposed as if the condition were a standard of this chapter.
(G) Appeal. Any aggrieved party with standing may appeal a waiver decision to a court of jurisdiction within ten days after the date of the Plan Commission decision.
(Ord. 10-2010, passed - -2010, § 9.19)