2002 Variances

The variance procedures are intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this title that create unreasonable hardship. When such hardship may be more appropriately remedied, if at all, pursuant to other provisions of this title, the variance procedure is inappropriate. 1) Authority of Hearing Officer The Hearing Officer may grant variances from the provisions of this title only in compliance with the procedures set forth in section C of this section and only in accordance with each of the standards enumerated in this chapter. 2) Parties Entitled to Seek Variances Applications for variances may be filed by an owner of the property affected or by the property owner's authorized agent. All applications for variances shall be filed on forms approved by the Planning and Zoning Commission. 3) Procedures a) Application An application for a variance shall be filed with the Planning and Zoning Commission and shall include the following items and information unless determined inapplicable by the Planning and Zoning Commission: i) The property owner's name and address and the owner's signed consent to the filing of the application; ii) The applicant’s name and address, if different than the owner, and the applicant's interest in the subject property; iii) The names and addresses of all professional consultants, if any, advising the applicant with respect to the application; iv) The address and legal description of the subject property; v) County ownership plat numbers identifying the property; and vi) Noticing and posting requirements shall be met as specified in this title. vii) A site plan drawn to scale identifying all property lines, structures, including primary and accessory structures, fences, right-of-way, and their respective distances from the property lines; viii) An elevation drawing to scale showing all elevations of existing and proposed structures; ix) When the variance involves building height a streetscape plan showing the height of the buildings on both sides of the street to the nearest intersection; x) When the variance involves grade changes, a topographical drawing prepared by a licensed surveyor shall be included. The existing topography shall be shown in dashed lines at two-foot (2') intervals and the proposed grade shall be shown in solid lines at two-foot (2') intervals. All retaining walls shall be identified and the height shall be shown on the plan relative to the proposed grades. Retaining walls shall be designed by a structural Engineer licensed to practice in the State; and xi) When a variance request involves setbacks or height or grade changes a complete landscape plan shall be provided. Plans shall show landscape design and identify all species and caliper of proposed plants. xii) A color aerial plat map of the area, not less than 14" x 20" and showing the area of the requested variance and at least 500 feet on each side of the area. xiii) The specific feature or features of the proposed use, construction or development that require a variance; xiv) The specific provision of this title from which the variance is sought and the precise variance being sought; xv) A statement of the characteristics of the subject property that prevent compliance with the provisions of this title and result in unnecessary hardship; xvi) A statement of the minimum variation of the provisions of this title that would be necessary to permit the proposed use, construction or development; xvii) An explanation of how the application satisfies each standard set forth in this chapter; xviii) Any other information identified by the Planning and Zoning Commission to be pertinent to the requested variance. b) Fees Non-refundable application and Hearing fees shown on the Town of Dutch John consolidated fee schedule shall accompany the application for a variance. c) Public Meeting Upon receipt of a complete application for a variance, the appeals Hearing officer shall hold a public meeting with notice in accordance with the requirements of this title. d) Action by Appeals Hearing Officer Upon the close of the public meeting, the Hearing Officer shall render its decision, granting, granting with conditions, or denying the variance, unless the Appeal and Variances Hearing Officer determines that additional time to study the information presented is necessary and which case a written decision shall be promptly rendered and delivered to each of the parties by mail or email. e) Special Procedures in Connection with Other Applications Whenever a variance is needed in addition to a zoning amendment or a conditional use, the Planning and Zoning Commission shall not schedule a Hearing on the variance until a final approval has been rendered on these other applications by the Planning and Zoning Commission or the Town Council, as applicable. 4) Prohibited Variances The Hearing Officer shall not grant a variance that: a) Is intended as a temporary measure only; or 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"). 5) Standards for Variances Standards shall be governed by State statute 10-20. 6) Variances 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) Conditions on Variances: In authorizing a variance, the Hearing Officer may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest to mitigate any harmful effects of the variance or that will serve the purpose of the standard or requirement that is waived or modified. The Hearing Officer may require a guarantee or bond to ensure that the conditions imposed will be followed. These conditions shall be expressly set forth in the 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 title and shall constitute grounds for revocation of the variance. 8) Effect of Granting Variances The granting of a variance shall not authorize the establishment or extension of any use, nor the development, construction, reconstruction, alteration or moving of any building or structure but shall merely authorize the preparation, filing and processing of applications for any permits and approval that may be required by the regulations of the Town, including, but not limited to, a zoning determination, a building permit, a certificate of occupancy, subdivision approval, and site plan approval. 9) Limitations on Variances Subject to an extension of time granted upon application to the Planning and Zoning Commission, no variance shall be valid for a period longer than one (l) year unless a building permit is issued or complete building plans have been submitted to the Planning and Zoning Commission within that period. The Planning and Zoning Commission 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. Extension requests must be submitted prior to the expiration of the variance. 10) Appeal of Decision Any person adversely affected by a final decision made by the Hearing Officer may file a petition for review of the decision with the district court within thirty (30) days after the decision is rendered. 11) Stay of Decision The Hearing Officer may stay the issuance of any permits or approval based on its decision for thirty (30) days or until the decision of the district court in any appeal of the decision in accordance with State statute 10-20.