§ 158.029. Variances.

(A)

Upon receipt of a complete application and application fee as set by resolution of the town commission the board of adjustment may authorize upon appeal a variance from the terms of this chapter as will not be contrary to the public interest and as set forth in subsection 158.026(F), where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary and undue hardship. In order to authorize any variance from the terms of this chapter, the board of adjustment must and shall find the following:

(1)

The variance is in fact a variance as set forth within this chapter and within the jurisdiction of the board after consideration of the recommendation of the town attorney.

(2)

Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same zoning district.

(3)

The special conditions and circumstances do not result from the actions of the applicant.

(4)

Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, buildings or structures in the same zoning district.

(5)

Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this chapter and would work unnecessary and undue hardship on the applicant.

(6)

The variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure.

(7)

The grant of the variance will be in harmony with the general intent and purpose of this chapter, and the variance will not be injurious to the area involved or otherwise detrimental to the public welfare.

(B)

An applicant for a variance shall have the burden of establishing both that a literal enforcement of the provisions of this chapter will result in unnecessary hardship, as that term is defined by law, including court decisions; and that allowance of the variance shall not be contrary to the public interest.

(C)

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of the conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter. The board of adjustment may prescribe a reasonable time limit within which the action for which the variance is required shall be begun or completed or both. Under no circumstances, except as permitted above, shall the board of adjustment grant a variance to permit a use not generally or by special exception permitted in the zoning district involved or any use expressly or by implication prohibited by the terms of this chapter in the zoning district. No nonconforming use of neighboring lands, structures or buildings in the same zoning district and no permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for the authorization of a variance.

(D)

In granting any variance, the board of adjustment shall hold a public hearing as set forth in subsections 158.027(D) and (E), and shall make specific findings of fact which establish that a literal enforcement of this Zoning Code will result in unnecessary and undue hardship. The board of adjustment shall also make specific findings of fact that each of the criteria set forth in subsection (A) of this section have been met. The findings of fact as required by this subsection shall be incorporated in the minutes of the meeting.

(Ord. 90-06, passed 3-19-90; Amd. Ord. 94-16, passed 11-17-94; Amd. Ord. 98-25, passed 7-16-98; Ord. 2011-26, § 3, passed 9-12-11)