7.1 VARIANCE

Variances are intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of Town Land Use Regulations that create unreasonable hardships. When such hardships are more appropriately remedied, if at all, pursuant to other provisions of Town Land Use Regulations, the Variance procedure is inappropriate. Property owners considering a Variance shall consult with the Town prior to such an application in order to clarify the Town’s Land Use Ordinances and other possible remedies. 7.1.1 Parties Entitled to Seek Variances Any person or entity desiring a waiver or modification of the requirements of Town Land Use Ordinances as applied to a parcel of property that he/she owns, leases, or in which he/she holds some other beneficial interest may apply for a Variance from the terms of Town Land Use Ordinances. 7.1.2 Authority for Variance The Variance and Appeal Hearing Officer (the “Officer”), in accordance with the procedures, standards and limitations of this Chapter and as further provided for in Ordinance 2006-3, shall approve, approve with conditions or disapprove an application for a Variance after receiving a recommendation from the Town. 7.1.3 Standards for Variance 1. The Officer may grant a Variance only if each of the following conditions are met: a. Literal enforcement of Town Land Use Ordinances would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purposes of Town Land Use Ordinances; b. There are special circumstances attached to the property that do not generally apply to other properties in the same zone; c. Granting the Variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone; d. The Variance will not substantially affect the General Plan and will not be contrary to the public interest; and e. The spirit of Town Land Use Ordinances are observed and substantial justice is done. 2. In determining whether or not enforcement of Town Land Use Ordinances would cause unreasonable hardship under this section, the Officer may not find an unreasonable hardship: a. If the hardship is self-imposed or economic; b. Unless it is located on or associated with the property for which the Variance is sought; and c. Unless it comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood. 3. In determining whether or not there are special circumstances attached to the property under this section, the Officer may find that special circumstances exist only if the special circumstances: a. Relate to the hardship complained of; and b. Deprive the property of privileges granted to other properties in the same zone. 4. The applicants shall bear the burden of proving all of the conditions justifying a Variance have been met. 5. Variances run with the land. 6. The Officer shall not grant a Variance that: a. Is intended as a temporary measure only; b. Is greater than the minimum variation necessary to relieve the unnecessary hardship demonstrated by the applicant; or c. Authorizes uses not allowed by law (i.e., a "use variance"). 7. In granting a Variance, the Officer may impose additional requirements on the applicant that will: a. Mitigate any harmful effects of the Variance; or b. Serve the purpose of the standard or requirement that is waived or modified. 8. The Officer shall decide all Variance Applications and other issues brought before it within a reasonable time. Decision on a Variance Application is final when the Officer dates and signs the application, stating approval or denial of the Application and the “Finding of Facts” or the written facts and evidence used in making the decision. 7.1.4 Submittal Requirements for Variance Applications The Applicant of a Variance shall file a Town Variance Application with the Planning and Land Use Commission Clerk. Variance Applications shall only be accepted after a complete application has been submitted, along with all submittal requirements and all fees paid. The Town Planning and Land Use Clerk shall certify the completeness of the Variance Application or reject the same, in a timely manner. A complete Variance Application shall include the following items and information unless determined inapplicable by the Planning and Land Use Clerk: 1. Written Information: a. The property owner's name and address and the owner's signed consent to the filing of the Application; b. The Applicant's name and address, if different than the owner, and the Applicant's interest in the subject property; c. The names and addresses of all professional consultants, if any, advising the Applicant with respect to the Application; and d. Street address and legal description of the subject property. 2. Graphic Information: a. A site plan drawn to scale identifying all property lines, existing and proposed structures, fences, road easements, setbacks and their respective distances from the property lines; b. An elevation drawing to scale showing all elevations of proposed structures with existing grade and finished grade shown and labeled; c. A topographical drawing prepared, prior to any earth-moving, by a registered land surveyor or civil engineer identifying all items listed in Subsection 2.a and 2.b of this Section. The existing grade shall be shown in dashed lines at two foot (2') intervals and the proposed finished grade shall be shown in solid lines at two foot (2') intervals; and d. A Town Grade Review signed by the Building Permit Agent prior to any earthmoving to determine existing grade. 3. Variance Information: a. The specific feature or features of the proposed use, construction or development that require a Variance; b. The specific provision of Town Land Use Ordinances from which the Variance is sought and the precise Variance being sought; c. A statement of the characteristics of the subject property that prevent compliance with the provisions of Town Land Use Ordinances and result in unnecessary hardship; d. A statement of the minimum variation of the provisions of Town Land Use Ordinances that would be necessary to permit the proposed use, construction or development; and e. An explanation of how the Variance Application satisfies each standard for Variances set forth in this Chapter; and any other information identified by the Planning and Land Use Commission Clerk to be pertinent to the requested Variance. 4. Fees A filing fee to cover the cost of review in accordance with the fee schedule adopted by resolution of the Town Council. The Applicant shall also be responsible for payment of all fees established for providing the public notices required by this Chapter. 7.1.5 Procedures for Variance Applications Noticing and posting requirements shall be met as specified in this Chapter and in accordance with the Utah Open and Public Meetings Act. 1. Town Recommendation Upon receipt of a complete application for a Variance, the Planning and Land Use Commission (Commission) shall review and make a recommendation to the Town Council who shall review the application and make a recommendation to the Variance and Appeal Hearing Officer (the “Officer”). Variance Applicants, or their representatives, must attend both the Commission and Town Council meetings at which the Variance request will be reviewed. Upon completion of a Town recommendation, but before a public hearing, the Town Clerk shall forthwith transmit to the Officer the Town recommendation along with the complete Variance Application and all required items and information listed in section 7.1.4 of this Chapter. 2. Notice of Town Review of Variance Applications to Neighbors To allow neighbors time to respond to a Variance request, an Applicant must submit the Variance Application to the Town thirty (30) days before the meeting at which the Variance request will first be reviewed by the Commission. The Town shall send notice, including, if practical, a copy of the Variance Application describing the proposal to the Parties of Interest at least fourteen (14) days prior to the Commission’s meeting at which the Variance Application will first be reviewed. Parties of Interest include the lot owner of each parcel of property abutting the property upon which the Variance is to be located and anyone else who has submitted a written request to be notified of the decision. 3. Public Hearing Required for Variance Applications A public hearing shall be held at the Town Community Building on a Variance Application after a recommendation has been made by the Town as required by this Chapter. At the public hearing the Officer shall consider the Application, the recommendation of the Town, the relevant support materials and the public testimony given at the public hearing. After the close of the public hearing, the Officer shall approve, approve with conditions or disapprove the Application for a Variance within a reasonable time. The Town shall approve procedures and policies that govern the conduct of the public hearing in accordance with Section 5 of Ordinance 2006-3, as amended. 4. Notice of Public Hearing for Variance Applications Before a public hearing for an Application for a Variance is held by the Officer, the Officer shall give notice to the Town and the Applicant at least fourteen (14) days prior to the hearing stating the time, place and purpose of the hearing. The Town shall send notice, including, if practical, the recommendation made by the Town to the Parties of Interest, at least ten (10) days prior to the Public Hearing stating the time, place and purpose of the hearing. The public hearing shall be noticed to the public in accordance with the Open and Public Meetings Act (Section 524-101, et seq., as amended. 7.1.6 Notice of Final Decision for Variance Applications The Officer shall give written notice of all final decisions and rulings for a Variance to the Town, the Variance Applicant, and other Parties of Interest within ten (10) business days after such a final decision is made. 7.1.7 Records of Proceedings and Final Decision The Town Clerk shall file a hard copy, marked as final with adoption date, of the final decision along with all other records of meetings or hearings held by the Officer, including written minutes, rulings, and other associated documents, in the Town Records for review and access by the public subject to the provisions of the Government Records Access Management Act, Section 63G-2-101, et seq., UCA, as amended. 7.1.8 Variance Less than Requested A Variance less than or different than that requested may be authorized when the record supports the applicant's right to some relief but not to the relief requested. 7.1.9 Conditions for Variance The Town may recommend, and the Officer may impose such conditions regarding the location, character and other features of the proposed structure on a Variance Application that are deemed necessary to accomplish the purposes of Town Land Use Ordinances and the Town’s General Plan, to prevent or minimize adverse impacts upon the public and neighbors and to ensure compatibility. These conditions shall be expressly set forth in the Variance and Appeal Hearing Officer's decision granting the Variance. Violation of any condition or limitation on the grant of a Variance shall be a violation of this Land Use Ordinance and shall constitute grounds for revocation of the Variance by the Town. 7.1.10 Effect of Variance Issuance of a Variance shall authorize only the particular variation that is approved in the Variance Decision. 7.1.11 Time Limit for Variance Subject to an extension of time granted upon application to the Town and unless otherwise specified in the Variance Decision, no variance shall be valid for a period longer than one year unless approval is granted by the Town on a building permit and the Applicant has submitted a complete building permit to the Grand County Building Department within that period. The Town may grant an extension of a Variance for up to one additional year when the Applicant is able to demonstrate no change in circumstance that would result in an unmitigated impact and the permit has yet to be approved by the Grand County Building Department. Extension requests must be submitted prior to the expiration of the Variance. Permitted time frames do not change with successive owners. 7.1.12 Appeal of Variance Decision Any person adversely affected by a final decision made by the Variance and Appeal Hearing Officer may file a petition for review of the decision with the district court within thirty (30) days after the decision is rendered.