The purpose of this chapter is to provide definitions, standards, and procedures for acting on requests for variances to this Code. (Ord. 252, 4-5-2018)

This chapter shall apply to all zoning districts unless otherwise indicated. (Ord. 252, 4-5-2018)

Whenever the following words or phrases are used in this chapter they shall have such meaning as herein ascribed to them, unless the context makes such meaning repugnant thereto:

   ADJOINING PROPERTY: All properties within, or adjacent to, a line three hundred feet (300') from the property for which a variance is requested. Contiguous properties owned by the same party are all treated as one property.

   SITE CHARACTERISTICS: The distinguishing physical characteristics of a property for which a variance is requested, including area, shape, soil and ground conditions, topography (slope), and access.

   VARIANCE: A modification of or an exception to the bulk and placement requirements of this title as to lot size, lot coverage, width, depth, front yard, side yard, rear yard, setbacks, parking space, building height, or other ordinance provision of this title affecting the size of lots or the size or shape of a structure or the placement of the structure upon lots. (Ord. 252, 4-5-2018)

A variance, not being a right, may be granted to an applicant only if the following requirements for granting a variance request are satisfied. The burden of proof rests upon the applicant for a variance to establish the following:

   A.   Submission of a completed application packet to the City;

   B.   Proof through evidence provided by the applicant:

      1.   That the site characteristics of the property for which the variance is requested cause undue hardship to the property owner when complying with specific provisions of this title;

      2.   That reasonable uses of the property are not possible without the requested variance; and

      3.   That approval of the requested variance will not be in conflict with the public interest and will not create a nuisance, harm adjoining properties, or have an adverse effect on implementation of the comprehensive plan;

   C.   A variance may not be granted if it is for the property owner's convenience or financial profit alone; and

   D.   The granting of a variance must grant the minimum relief from the requirements of this title necessary to allow a reasonable use of the property. (Ord. 252, 4-5-2018)

   A.   If a variance is determined to be necessary by the City, a property owner or applicant may apply for a variance. The burden of proof lies with the property owner or applicant to provide accurate and sufficient information within the variance application packet.

   B.   A preapplication conference is required by a property owner or applicant to complete a variance application. The City shall provide the information on the application requirements, criteria and process to obtain a variance from the City.

   C.   A variance is requested by submitting to the City a complete application packet.

      1.   An application packet shall consist of an application form provided by the City and attachments thereto that together include all of the following:

         a.   The name, address, and telephone number of the owner(s) of the property for which a variance is requested and of the applicant(s), if different. If the applicant is different from the owner, then the consent of the owner is required.

         b.   The legal description of the property for which a variance is requested.

         c.   At least six (6) photographs of the property for which a variance is requested, taken from all sides at the property line. Photographs should try to depict the applicable site characteristics of the property.

         d.   A site plan of the property for which the property is requested. The site plan shall meet the requirements of chapter 10 of this title, drawn to scale and also delineate the following:

            (1)   All structures, both existing and proposed;

            (2)   All dimensions, including property lines and setbacks from property lines to structures; and

            (3)   All site characteristics that support the request for a variance.

      2.   A written narrative is required that explains all of the following:

         a.   The purpose of the variance;

         b.   Which site characteristics, in the absence of a variance, cause undue hardship on the property owner;

         c.   A detailed description of the reasonable uses of the property that are not possible without approval of the requested variance;

         d.   A statement that indicates how the approval of the variance will not be in conflict with the public interest and will not create a nuisance, harm adjoining properties, or have an adverse effect on implementation of the comprehensive plan;

         e.   A statement from the applicant that he/she understands and agrees that the variance will not be granted if it is for the property owner's convenience or financial profit alone; and

         f.   That the requested variance is the minimum relief from the requirements of this title necessary to permit a reasonable use of the property.

      3.   The applicant shall provide a mailing list of the names and mailing addresses and two (2) sets of completed mailing labels of all adjoining property owners within three hundred feet (300') of the subject property. Note: The applicant bears the burden of proof to provide accurate information to the City to notify the adjoining property owners. If adjoining property owners are not notified, the hearing will not be held, the City will not be liable for the inaccurate information and the applicant will be responsible for any additional costs the City incurs to hold additional public hearings.

      4.   The applicant shall remit applicable fees to the City as determined by the City's fee resolution.

   D.   Upon receipt of an application for a variance, the City staff shall check that it is complete, including fees paid. If an application is not complete the City staff shall so advise the applicant and a hearing shall not be scheduled.

   E.   Upon determining that an application is complete, the City staff shall:

      1.   Set the matter for a hearing before the Dalton Gardens Planning Commission, allowing for sufficient time to comply with all notice requirements.

      2.   Give notice of the hearing to the applicant and adjoining property owners.

   F.   A public hearing will be held by the Dalton Gardens Planning Commission using the procedures found in chapter 10 of this title. The commission shall, after reviewing the application packet and taking any testimony and receiving any exhibits offered by the applicant and members of the public at a hearing for that purpose, make specific written findings as to whether the requirements for granting a variance request have been satisfied.

   G.   Within thirty (30) days after the public hearing, the commission shall either approve, conditionally approve or deny the application as presented or delay such decision for a definite period of time for further study. The commission's decision shall include any conditions that should be attached to the approval of the application, including conditions designed to mitigate the impact of the variance.

   H.   The commission's decision shall be in writing and:

      1.   Shall include its specific findings of fact, based on the evidence presented to it, that support its decision as to whether the requirements for granting a variance have been satisfied;

      2.   Shall, based on its findings, approve or deny the requested variance application;

      3.   Shall be issued within sixty (60) days of the closing of its hearing on the matter; and

      4.   May include conditions upon its approval of the variance application, including conditions designed to mitigate the impact of the granted variance. Violation of such conditions shall be deemed a violation of this title.

   I.   Under no circumstances may the commission grant a variance that permits a use of the property not permissible under the terms of this title in the district involved or any use expressly or by implication prohibited by the terms of this title in said district.

   J.   The Clerk shall notify the property owner (and the applicant, if different) of the commission's decision within five (5) business days of its issuance.

   K.   The commission's decision may be appealed to the City Council under section 1-11-1, where the decision after a proper appeal shall then be the final decision of the City. (Ord. 252, 4-5-2018; amd. Ord. 3-5-2020)