The purpose of a variance is to allow a deviation from the strict application of the zoning ordinances in relation to physical conditions whereby a literal enforcement of the provisions of the zoning ordinance would result in an unnecessary hardship for a property owner. This section shall provide a process and procedure for review of application for a variance. The Board of Adjustment shall approve or deny a variance to the zoning ordinance based on consideration of the review criteria set forth in Section 17.48.040 of this code, Planning Administrator recommendation, Planning Commission recommendation, and all public input. (Ord. 804, 2018)

   A.   Applications: any person, firm, or corporation may apply for a variance. If such person, firm, or corporation is acting as an authorized agent, written authorization consenting to the application shall be provided by the property owner. An application shall be provided by the city and returned to the Planning Administrator. The completed application along with all supporting documentation shall be submitted to the Planning Administrator at least twenty (20) days prior to the next regularly scheduled Planning Commission meeting and shall illustrate:

   1.   That 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;

   2.   That a literal interpretation of the provisions of the zoning ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the zoning ordinance;

   3.   That the special conditions and circumstances do not result from the actions of the applicant;

   4.   That the granting of the variance requested will not confer on the applicant any special privilege that is denied by the zoning ordinance to other lands, structures, or buildings in the same district; and

   5.   That the grounds for the application is not based on nonconforming uses of neighboring lands, structures, or buildings in the same district.

   B.   Fees: Upon filing any application for a variance, the applicant shall pay Custer City the appropriate fee(s) as set forth by the fee schedule adopted annually by resolution. (Ord. 804, 2018)

   The following shall be the procedures used after an application for a variance and the required fees have been submitted to the Planning Administration:

   A.   The Planning Administrator shall review the completed variance application and determine if granting the variance would be contrary to the public interest. Additionally, any application not containing and/or addressing all the information required in Section 17.48.020(A), shall be rejected, and returned to the applicant, along with the fees and the reasons for rejection.

   B.   If the Planning Administrator finds the application complies with the application requirements, the Planning Administrator shall present the application to the Planning Commission in a public hearing at the next available scheduled meeting in coordination with the appropriate public notifications. The Planning Administrator shall also present a report indicating the Planning Administrators recommendation concerning the approval of the application. At the public hearing, any interested person shall be given a full, fair, and complete opportunity to be heard.

   1.   Notice of the Planning Commission public hearing shall be given by sign, mail, and newspaper.

   a.   Sign: A sign will be furnished by the Planning Administration and posted by the Planning Administration. The sign must be posted in plain public view at the property where the variance application is requested and must be posted no less than ten (10) days prior to the date of the Planning Commission meeting and must remain posted until final action by the City Council is completed. The sign shall comply with SDCL 11-4-4.4.

   b.   Mail: A minimum of ten (10) days prior to the public hearing, the Planning Administration shall notify, by mail, all property owners within two hundred fifty (250) feet from the property boundary line of the property being considered for a variance. Any adjacent property under the applicant's ownership shall not be considered for measurement of such area, and in such situation, the measurement shall begin at the next contiguous property boundary line. Mail notification shall be given by use of a "Notice of Hearing" form established by the Planning Administrator and shall be sent by First Class Mail.

   c.   The Planning Administrator will publish legal notice in the local newspaper at least ten (10) days prior to the City Council meeting.

   C.   After reviewing the application, the Planning Commission shall make recommendations to the Board of Adjustment to approve, approve with conditions, or deny the application.

   D.   Following the Planning Commission recommendation, Board of Adjustment shall review the variance application in a public hearing at the next available scheduled meeting in coordination with the appropriate public notifications. At the public hearing, any interested person shall be given a full, fair, and complete opportunity to be heard.

   1.   After recommendation is made by the Planning Commission, notice of the Board of Adjustment public hearing shall be given by sign, mail, and newspaper.

   a.   Sign: A sign will be furnished by the Planning Administration and posted by the Planning Administration. The sign must be posted in plain public view at the property where the variance is requested and must be posted no less than ten (10) days prior to the date of the Board of Adjustment meeting and must remain posted until final action by the Board of Adjustment is completed. The sign shall comply with SDCL 11-4-4.4.

   b.   Mail: A minimum of ten (10) days prior to the public hearing, the Planning Administration shall notify, by mail, all property owners within two hundred fifty (250) feet from the property boundary line of the property being considered for a variance. Any property within this area which is under the applicant's ownership shall not be considered for measurement and, in such situation, the measurement shall begin at the next contiguous property boundary line Mail notification shall be given by use of a "Notice of Hearing" form established by the Planning Administrator and shall be sent by First Class Mail.

   c.   The Planning Administration will publish legal notice in the local newspaper at least ten (10) days prior to the Board of Adjustments meeting.

   E.   The Board of Adjustment shall issue its decision after consideration of review criteria set forth in Section 17.48.040 of this code, Planning Administrator recommendation, Planning Commission recommendation, and all public input. A variance shall be considered approved if the application receives an affirmative vote by two-thirds majority of present voting members of the Board of Adjustment. As a condition of approval, the Board of Adjustment may impose, consistent with the general purpose of the zoning ordinance, appropriate conditions and safeguards to any variance granted. (Ord. 843, 2020: Ord. 804, 2018)

   Generally, the granting of any variance shall be in harmony with the general purposes and intent of the zoning ordinance and will not be injurious to the neighborhood, detrimental to the public welfare, or be in conflict with the comprehensive plan for development. The following are considered by the Planning Commission and Board of Adjustment for the determination of the approval or denial of a variance:

   A.   If the physical surroundings, shape, or topographical conditions of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the ordinance were to be carried out;

   B.   That granting the variance requested will not confer on the applicant any special privilege that is denied by the zoning ordinance to other lands, structures, or buildings in the same district;

   C.   That the conditions upon which the application for a variance is based would not be applicable generally to other property within the same zoning classification or other property substantially similar in use;

   D.   That variances shall not be granted to allow conditional uses, nor uses otherwise excluded from the particular district in which requested;

   E.   That the granting of the variance will not be detrimental to the public welfare or injurious to other people or property in the area in which the property is located, detrimental effects include but are not limited to impairment of an adequate supply of light and air to adjacent property, negative effect to the flow of vehicle and pedestrian traffic in the public streets, increase the danger of fire;

   F.   That because of circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (Ord. 804, 2018)

   A variance which has been approved by the Board of Adjustment shall be considered valid for only the property, item, subject, topic or issue in which the variance was approved upon. (Ord. 804, 2018)

   Appeals of a decision of the Board of Adjustment may be taken to the Custer County Circuit Court by any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the city, aggrieved by any decision of the Board of Adjustment, in the manner and form provided by the statutes of the State of South Dakota, in such cases made and provided. (Ord. 804, 2018)

   Any order of the Board of Adjustment granting a variance may be declared invalid by the Board of Adjustment unless substantially completed within two (2) years from the date of such order. The Planning Administrator shall notify the property owner of record upon invalidation of a variance. (Ord. 804, 2018)

   No applicant requesting a variance whose application includes the same or substantially the same requirements for the same or substantially the same property as that which has been denied by the Board of Adjustment or the Circuit Court shall reapply again before the expiration date of one (1) year from the date of the final action concerning the application. The reapplication for a variance shall be processed in the same manner as a new application for a variance. (Ord. 804, 2018)