The purpose of this article is to provide mechanisms for obtaining relief from the provisions of this code where unreasonable hardship would otherwise occur.

(Ord. No. 2013-01, § 5(Attach., § 10.00.00), 7-9-13)

(a)

Subject to the provisions below for terminating nonconforming development, such development may, if otherwise lawful and in existence on the date of enactment of the part of this code that makes the use nonconforming, remain in use in its nonconforming state until termination is required under the provisions of this code.

(b)

Nothing in this code shall be taken to prevent the restoration of a building that sustains damage of less than fifty (50) percent of its assessed value.

(c)

Nonconforming uses shall not be enlarged or increased, nor shall any nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the use became nonconforming.

(Ord. No. 2013-01, § 5(Attach., § 10.01.01), 7-9-13)

Nonconforming structures must be brought into full compliance with this code in conjunction with the following activities:

(1)

The gross floor area of the structure is expanded by more than twenty-five (25) or more than four thousand (4,000) square feet, whichever is less. Repeated expansions of a structure, constructed over any period of time after January 1, 1989 shall be combined in determining whether this threshold has been reached.

(2)

Reconstruction or remodeling of the principal structure when the reconstruction or remodeling will cost more than forty-nine (49) percent of the assessed value of the structure. If there are multiple principal structures on a site, the cost of reconstruction shall be compared to the combined assessed value of all the structures.

(3)

If a nonconforming use is discontinued for more than nineth (90) days, any future use of the land shall be in conformity with the provisions of this chapter.

(Ord. No. 2013-01, § 5(Attach., § 10.01.02), 7-9-13)

(a)

Reviewed by the community development board. The community development board reviews applications for variances from the strict application of any provision of this code and makes recommendations regarding the variances to the town council for final action. Provisions regulating land use and consistency or concurrency may not be varied.

(b)

Variances considered as part of development review. Any person desiring to undertake a development activity not in conformance with this code may apply for a variance in conjunction with the application for development review. The variance shall be granted or denied in conjunction with the application for development review.

(Ord. No. 2013-01, § 5(Attach., § 10.02.01), 7-9-13)

(a)

Initial determination. The community development board shall first determine whether the need for the proposed variance arises out of the physical surroundings, shape, topographical condition, or other physical or environmental conditions that are unique to the specific property involved. If so, the board must make the following required findings before granting of the variance. If, the condition is common to numerous sites so that requests for similar variances are likely to be received, the Board may make the required findings based on the cumulative effect of granting the variance to all who may apply.

(b)

Required findings. The community development board shall not vary the requirements of any provision of this code unless it makes a positive finding, based on substantial competent evidence presented to the board that each of the following exist:

(1)

There is no reasonable use of the property because of the practical or economic difficulties in carrying out the strict letter of the regulations.

(2)

The hardship is not created by the applicant's actions.

(3)

If the applicant complies strictly with the provisions of the ordinance, he is deprived of rights that others in the district have.

(4)

The hardship is not suffered by the applicant's neighbors or the general public.

(5)

The hardship relates to the land rather than personal circumstances.

(6)

The variance is the minimum variance that will allow a reasonable use of the land, building, or structure.

(7)

The variance will not create or extend a nonconforming use or structure.

(8)

The variance will not substantially increase congestion on surrounding public streets, the danger of fire, or other hazards to the public.

(9)

The variance will not substantially diminish property values in, nor alter the essential character of, the area surrounding the site.

(c)

Imposition of conditions.

(1)

In granting a variance, the community development board may impose conditions. The conditions shall be entered on the face of the development permit and are enforceable in the same manner as any other requirements of this code.

(Ord. No. 2013-01, § 5(Attach., § 10.02.02), 7-9-13)

The following steps must be followed to request a conditional use:

(1)

All applications must be filed with the administrative official on the proper form furnished by the administrative official, and said application shall only be accepted when filed by the owner of the property under consideration or his authorized agent or attorney.

(2)

The application submitted shall include the following information:

a.

An adequate legal description of the premises as to which the conditional use is requested;

b.

The names and addresses of the owners or tenants in possession of the premises;

c.

A description of the conditional use desired which shall specifically and particularly describe the type, character and extent of the proposed conditional use;

d.

The reason for requesting the conditional use;

e.

The signature of the owner or the owner's authorized agent or attorney, including a copy of the agency agreement or a written consent of the owner;

f.

Payment of the official filing fee as set by the town council.

(3)

After the administrative official has received the request, the request will be placed on the agenda of the next meeting of the planning agency (community development board), which will meet the time limit required by the planning agency. The planning agency shall study each request for a conditional use, conduct a public hearing after due public notice and make a written recommendation to the town council. The written report and recommendation shall state specific reasons and findings of fact upon which its recommendation is based.

(4)

Any review of any application for a conditional use shall consider:

a.

Ingress and egress to property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control and access in case of fire or catastrophe;

b.

Off-street parking and loading areas, where required, with particular attention to the items in subsection (1) of this section and the economic, noise, glare and odor effects of the special exception on adjoining properties and properties generally in the district;

c.

Refuse and service areas, with particular reference to the items in subsections (1) and (2) of this section;

d.

Utilities, with reference to locations, availability and compatibility;

e.

Screening and buffering, with reference to type, dimensions and character;

f.

Signs, if any, and proposed exterior lighting, with reference to glare, traffic, safety, economic effects and compatibility and harmony with properties in the district;

g.

Required yards and other open space;

h.

General compatibility with adjacent properties and other property in the district.

(5)

The town council shall conduct a public hearing after due public notice, following which they shall consider the application for a conditional use permit and the planning agency's report and recommendation thereon, as well as citizens' attending such hearing and shall deny, approve or approve with conditions the petitions.

(6)

The town council may, as a condition to the granting of any application for a permit, impose such conditions, restrictions or limitations in the use of the premises, or upon the use thereof as requested in the application, as the town council may deem appropriate and in the best interest of the town, taking into consideration matters of health, safety and welfare of the citizens, protection of property values and other considerations material to good zoning principles and concepts.

(7)

Any conditional use permit granted by the town council shall permit only the specific use or uses described in the application, as the same may be limited or restricted by the terms and provisions of the permit, and none other; any expansion or extension of the use of such premises, beyond the scope of the terms of the permit, shall be unlawful and in violation of this chapter and render the permit subject to suspension or revocation by the town council.

(8)

The town council may suspend or revoke a conditional use permit at any time the town council determines that the use has become a public or private nuisance because of an improper, unauthorized or other unlawful use of the premises. If a petition for a conditional use permit is denied by the town council, thereafter, the town council shall take no further action on another petition for substantially the same use on the same premises until twelve (12) months after the date of the last denial.

(Ord. No. 2013-01, § 5(Attach., § 10.03.00), 7-9-13)

Development on parcels containing environmentally sensitive areas may be clustered on non-sensitive portions of the site by concentrating the number of units or the amount of square footage allowed for the entire site on the non-sensitive portions. Any fraction equal to one-half (½) or greater shall be rounded to the nearest whole number. The clustered development shall meet all other applicable provisions of this code including those in the environmentally sensitive land regulations relating to development activities adjacent to environmentally sensitive areas. Parcels may not joined nor may acreage from separate parcels be counted for the purpose increasing allowable densities or coverage on non-sensitive lands in a particular parcel.

(Ord. No. 2013-01, § 5(Attach., § 10.04.01), 7-9-13)