8.02.08 Variances – Procedure

(1) Applications. Applications for variance shall be filed with the planning office. Applications shall contain the following information: (a) A description of the requested variance together with a designation of that section of the Town of Daniel Land Use and Development Code from which relief is being requested; (b) An accurate plot plan, if appropriate, indicating the manner in which the variance will be applied and its effect upon adjacent properties; and (c) A filing fee as established by ordinance. (2) Public Hearing. Upon receipt of a complete application as determined by the planning staff, a public hearing shall be set with the Board of Adjustment for the next available meeting date. (3) Burden of Proof. The applicant for a variance shall bear the burden of proving that all of the foregoing conditions are satisfied as determined by the planning department. (4) Findings Required. The Board of Adjustment may authorize variances from the requirements of this title, only when those variances serve the public interest, and are consistent with State law. In addition the Board of Adjustment may not grant use variances. The concurring vote of not less than four (4) members of the Board of Adjustment shall be necessary to grant a variance. (5) Requirements for Granting a Variance. The Board of Adjustment may grant a variance only if all of the following conditions are met: (a) Literal enforcement of the Land Use ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the Land Use ordinance; (b) There are special circumstances attached to the property that do not generally apply to other properties in the same districts; (c) Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district; (d) The variance will not substantially affect the General Plan and will not be contrary to the public interest; and (e) The spirit of the Land Use ordinance is observed and substantial justice done. (6) Unreasonable Hardship. In determining whether or not enforcement of the Land Use ordinance would cause unreasonable hardship under Subsection Five (5)(a), the Board of Adjustment may not find an unreasonable hardship unless the alleged hardship: (a) Is located on or associated with the property for which the variance is sought; and (b) Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood. (i) In determining whether or not enforcement of the Land Use ordinance would cause unreasonable hardship under Subsection Five (5)(a), the Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic. (ii) In determining whether or not there are special circumstances attached to the property under Subsection Five (5)(a), the Board of Adjustment 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 district. (7) Meeting Conditions. The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met. (8) Variance Applicability. Variances run with the land. (9) Use Variance. The Board of Adjustment and any other body may not grant use variances. (10) Additional Requirements. In granting a variance, the Board of Adjustment 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.