All applications for a variance from the requirements of this Chapter shall be processed by making a direct application to the Board. The Board shall then follow its standard procedures, as outlined in this Chapter, for setting a public hearing. In making its decision, the Board shall follow the intent of this Chapter and the requirements and criteria listed below.

(Prior code 15-2-16.5)

The Board may vary terms of this Chapter with respect to width, yard size, distance, slope and excessive slope review, but not characteristics associated with the use or uses or any provisions of the stream margin review requirements. The Board may not vary the permitted or conditional uses set forth in this Chapter.

(Prior code 15-2-16.5; Ord. 13 §4, 1991; Ord. 17 §4, 1991; Ord. 2 §4, 1993)

(a)

When considering whether to approve a variance, the Board must find that the proposal complies with all of the criteria contained in this Section. A variance applies to the following:

(1)

Changes that violate this Chapter to a greater degree than currently exists, such as:

a.

Additions that encroach further into the setback; and

b.

Additions that exceed the width limit.

(2)

Proposals that propose to violate this Chapter, such as:

a.

Proposals that encroach into the setback;

b.

Proposals that exceed the width limit; and

c.

Proposals that are less than the minimum for roof pitch or side wall height.

(b)

Variances shall not be allowed with respect to floor area, floor area ratio, height, open space or parking.

(c)

If the proposal does not comply with the criteria listed below, the proposal shall be approved with conditions that ensure compliance with all such criteria, continued to a date certain or denied by motion of the Board. If a continued request is not rescheduled by the proponent for discussion to occur on or before the date to which the request is continued, the request is deemed to be denied without further action by the Board. The Board must find that:

(1)

The particular physical surroundings, shape or topographical condition of the subject property cause a particular hardship to the owner, as distinguished from a mere inconvenience, if this Chapter is strictly enforced.

(2)

The conditions upon which the variance is requested would not be applicable, generally, to other properties within the same zoning classification.

(3)

The alleged difficulty or hardship has not been created by any person presently or previously having an interest in the property.

(4)

The proposal is consistent with the objectives and purposes of this Chapter and the applicable zoning district.

(5)

The proposal is compatible with the neighborhood context and size. When determining compatibility with the neighborhood, the Board shall consider the following:

a.

Size.

b.

Density of building.

c.

Amount of open space.

d.

Scale.

e.

Maintenance of view corridors and provision of similar or improved landscaping.

(6)

The variance shall not create significant adverse impacts on adjacent property owners, including but not limited to the following:

a.

Snow storage.

b.

Snow shedding.

c.

Snow removal.

d.

Solar access.

e.

Other significant design features.

f.

Fire access.

(7)

The variance shall not create congestion, automotive or pedestrian safety problems or other traffic hazards.

(Prior code 15-2-16.5; Ord. 13 §4, 1991; Ord. 4 §1, 2009)

(a)

The Board may vary terms of this Chapter with respect to minimum setbacks, building width, wall heights, open space and roof slope when an addition is requested to a contributing or restorable historic structure that is below its matter of right floor area ratio. In order to grant such variance, the Board must find that:

(1)

The addition requested would not cause the floor area ratio to exceed that allowed as a matter of right.

(2)

Approval of the addition to the historic structure would not cause the historic structure to violate the Design Guidelines in Chapter 17 of this Code or detrimentally affect the historic structure or other historic structures on the site.

(3)

The granting of the application and variance would not significantly detrimentally affect the historic resource.

(4)

The granting of the variance would not create significant adverse impacts on adjacent property owners, including but not limited to the following:

a.

Snow storage.

b.

Snow shedding.

c.

Snow removal.

d.

Solar access.

e.

Other significant design features.

f.

Fire access.

g.

View corridors.

(5)

The granting of the variance would not create congestion, automotive or pedestrian safety problems or other traffic hazards.

(6)

The owner agrees to limit future expansion to the matter of right floor area ratio. Said agreement shall be entered into and recorded in the manner set forth in Section 16-9-70 of this Chapter.

(7)

The owner agrees that any subsequent expansion to the structure or on the property may not use the granting of this variance as grounds for a conditional waiver.

(b)

For variances requested for historic structures meeting all the following conditions, the criteria listed in Paragraphs (a)(1), (2) and (3) above may be waived if the other criteria in that Paragraph are met:

(1)

A historic structure located on its own parcel will be expanded;

(2)

The parcel where the building is located was created prior to 1971 and is smaller than the minimum lot size allowed in that zoning district;

(3)

The primary orientation of the structure is to an alley or the structure is adjacent to an alley;

(4)

There will be not more than a ten-percent, but not to exceed a seventy-five-square foot, increase to the total floor area of the structure; and

(5)

The building will not exceed the maximum building size for an accessory building.

(Prior code 15-2-16.5; Ord. 13 §4, 1991; Ord. 8 §1, 2002; Ord. 4 §1, 2009)

The granting of a variance becomes part of the building permit applied for, and said variance shall lapse when and if the building permit lapses under the terms of this Code.

(Prior code 15-2-16.5)

In granting a variance, the Board may require the applicant to comply with any conditions it may deem to be in the best interests of the Town. Such conditions shall be entered into and recorded in the manner set forth in Section 16-9-70 below.

(Prior code 15-2-16.5)

Whenever the Board under the terms of this Code requires an applicant to agree to comply with certain conditions as to use or occupancy, or to restrict such use or occupancy in any manner, such conditions or representations shall be recorded by the Board and become part of the building permit. Further, the applicant shall execute a "Notice of Agreement for Land Use Conditions and Restrictive Covenants", in the form attached to this Code as Appendix F, which the Town shall record in the real property records of the County. A violation of any such restrictive covenant, condition or representation shall constitute an offense under Section 16-24-20 of this Chapter and subject the violator to the penalties and the Town's remedies as set forth therein. In addition, a certificate of occupancy may be withheld or revoked unless or until such conditions are met. The Board may require that such notice contain a time deadline for compliance with all conditions and covenants, which deadline shall not be more than three (3) years from the date of approval of the application by the Board. Such conditions or covenants shall be deemed to run with the land, and shall be binding on the applicant and his or her successors and assigns. These same procedures shall apply to any legislative action changing a zoning classification or approving a subdivision proposal which is based upon representations by an applicant or conditioned upon certain uses and/or performances by the applicant. In the event that such representations or conditions of rezoning or subdivision are not met, the subject property shall automatically revert to its prior zoning or unzoned classification and its prior subdivision of land and use. No construction or repair shall occur except in strict compliance with such conditions or covenants and until the documentation of the same is provided to the satisfaction of the Town. The Board or Town Council may also require such performance bond or financial performance guarantee as it deems appropriate to ensure that conditions or representations are met by the applicant.

(Prior code 15-2-17; Ord. 4 §9, 1991; Ord. 4 §2, 1992; Ord. 3 §24, 1994; Ord. 4 §1, 2009)

At such times as are requested by the Town, which shall not be requested more than one (1) time per year, the owner of property upon which there are imposed certain conditions as to use or occupancy, or which restrict such use or occupancy in any manner as described in Section 16-9-70 above, shall complete a form provided by the Town. Such form shall require the owner to provide information to the Town, under penalty of perjury, with respect to such use and occupancy. The failure to return the form, properly and fully completed and signed by the owner, attesting to its contents under penalty of perjury, within thirty (30) days of the date of the form, shall be a violation of this Chapter and shall be punishable as provided in Section 16-24-20 of this Chapter.

(Prior code 15-2-17.1; Ord. 4 §1, 2002)