The board of trustees may authorize, in specific cases and only after submission of a landowner of a proper application followed by a public hearing, as set forth below, such variance from the terms of this code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this code would result in unnecessary hardship to the landowner. No variance shall be granted merely on the grounds that the subject real property is presently a nonconforming use or adjacent to other nonconforming uses. There shall be a presumption that the variance would not be in the best interests of the town of Simla. The procedures for applying for a variance are as follows:
A. Application For Variance: A variance from the terms of this code shall not be considered by the board of trustees unless and until a written application has been submitted to the Simla building inspector. The building inspector shall first determine whether or not the application complies with the requirements of this section. If the application contains all of the information required, the building inspector shall then submit to the board the application and attached information along with the building inspector's findings and recommendations. If the application does not comply with this code, the building inspector shall so inform the landowner of those requirements that have not been met. The completed application shall include the following:
1. The name, address, and telephone number of the applicant or applicants.
2. The legal description and street address of the subject property.
3. A detailed description of the variance that is being requested including a sketch of the property and existing setbacks, height, and other facts relevant to the variance request.
4. A narrative statement from the applicant, accompanied by such documentation as the applicant asserts is relevant stating why special conditions and circumstances exist which are peculiar to the subject property, the structure or buildings involved, and an explanation or argument as to why the subject property or buildings are not similar to other lands, structures, or buildings located within the town and why the present town code provisions should not apply to the subject property or buildings. As to the narrative, the applicant shall further state why a literal interpretation of the provisions of this code would deprive the applicant of rights commonly enjoyed by other properties located within the town, why special conditions and circumstances relevant to the subject property do not result from the actions of the applicant, and why granting the variance requested would not confer upon the applicant any special privilege that are denied by this code to other lands, structure, or buildings in the town.
5. The applicant shall provide a list of the names and mailing addresses of all property owners whose property is located within an area within three hundred feet (300') of the subject property seeking the variance.
6. At the time of the submittal of the application to the building inspector, the building inspector shall notify the town board of the application. The board shall then, at the next regularly scheduled meeting, determine the application fee, which should be deposited with the town clerk. The amount of the fee shall be determined by the board based upon a preliminary review of the application and shall be designed to cover the town costs resulting from the variance review and hearing including review by the town engineer and town attorney, if requested by the board, and the sums required for publication and administrative review. No application for variance shall continue until such time as the applicant has deposited the requested amount. The town reserves the right to request additional sums if the review of the application results in unforeseen expenses.
B. Public Hearing: Upon the board's receipt of the application, application fee, and the building inspector's report and recommendations, the board may request such further information from the applicant as the board deems to be necessary for a proper review of the application. Upon receiving all information deemed by the board to be necessary for the review, notice of the application and notice of a public hearing shall be published in the two (2) weeks preceding the public hearing. The board shall also cause or require to be mailed copies of the public notice to all parties as would be required for special use review/permits and those landowners within three hundred feet (300') of the subject property. The public hearing may be either at a regularly scheduled meeting or a special meeting called for the variance review.
C. Action By Board Of Trustees: A variance shall not be granted unless the board of trustees makes specific findings of fact based directly on the particular evidence or testimony presented to the board through the application packet and at the public hearing. The evidence must support the conclusion that the applicant has met all of the above described standards and conditions for the granting of a variance. Within thirty (30) days of the public hearing, the board of trustees shall either approve, conditionally approve, or disapprove the request for variance. The board may delay its decision for a definite period should it determine that further information is required before making the decision. In making its determination, the board of trustees shall refer to the ordinance and standards used in evaluating the application, the reasons for approval or denial, and the actions, if any, that the applicant may be required to take in obtaining a permit or approval of the variance.
D. Supplemental Conditions And Safeguards: Should the board of trustees determine that the granting of a variance is appropriate, the board may prescribe conditions and safeguards in conformity with this code. Violations of such conditions and safeguards, when made a part of the terms for the approval of the variance, shall be deemed a violation of this code.
E. Appeals From The Decision Of The Board Of Trustees: Any interested landowner may appeal the decision of the board of trustees by appropriate legal action to a court of record having legal jurisdiction thereof. Such appeal shall be filed no more than thirty (30) days from the date of the board's decision. (Ord. 271, 1-13-2009)