The Board of adjustment is hereby created and established, the members of which shall be appointed by the Board of Trustees. The Board of Trustees may, if it so elects by resolution, serve as the Board of Adjustment. Should the Board of Trustees elect to appoint a separate Board of Adjustment, the Board of Adjustment shall consist of three (3) regular members and two (2) alternates, each to be appointed for three-year terms, with the initial terms to be staggered so that the term of at least one (1) regular member will expire each year. In the event that the Board of Trustees does not serve as the Board of Adjustment, the Board of Trustees may appoint one (1) or more of its members to serve on the Board of Adjustment. Nothing herein shall be construed as preventing the reappointment of a member. Any vacancy which occurs on the Board of Adjustment shall be filled by an appointment made by the Board of Trustees, which shall select a current alternate member to fill the vacancy if such alternate member is willing to fill the vacancy and serve out the unexpired term of the vacant member position. All members of the Board of Adjustment shall be bona fide residents of the Town and, if any member ceases to reside in town, his or her membership shall immediately terminate. All members of the Board of Adjustment shall serve without compensation. The Board of Adjustment shall hold at least one (1) meeting per month when there is business to be transacted.

(Ord. 2015-3, §1, 1-4-2016)

The Board of Adjustment shall, at its first meeting of each year, select a Chairman and a Vice Chairman. The Chairman shall preside at meetings and shall perform all duties customary for the presiding officer of any board or group. The Vice Chairman shall perform the duties of the Chairman in the absence of the Chairman. The Town Clerk shall act as Secretary to the Board of Adjustment and shall keep full and complete minutes and records of all meetings, shall have the custody of all the records of all meetings, shall generally supervise all of the clerical work of the Board of Adjustment and shall perform the duties usually performed by the secretary of a board or group.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Public notice shall be given of all hearings and all hearings shall be open to the public.

(B)

A quorum of the Board of Adjustment shall consist of two (2) members.

(C)

The members of the Board of Adjustment shall attend all meetings in person; except that a member may attend by telephone upon an affirmative vote of the Board of Adjustment.

(D)

The Chairman, or in his or her absence, the Vice Chairman may administer oaths and compel the attendance of witnesses.

(E)

For any hearing on an application for a variance, the applicant shall cause notice of the same in conformance with Article IV of this Chapter.

(F)

All evidence and testimony on an application shall be presented publicly. The Board of Adjustment may take notice of facts and shall consider any relevant information which is stated into the record at a hearing.

(G)

For each case or matter heard, the Board of Adjustment shall cause a record of its proceedings to be prepared. The record of proceedings shall include all documents and physical evidence considered in the case. The record offered by all witnesses in the case shall be considered by the Board of Adjustment in reaching its decision. The record of proceedings shall be maintained in the office of the Town Clerk and shall be a public record.

(H)

If an applicant fails to appear at the hearing, either in person or by his or her agent, or provide a written statement in lieu of his or her appearance, the variance application shall be denied and no reconsideration shall be allowed on the matter for a period of one (1) year except in the case of unforeseen hardship.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Applications must be complete and explicit. Every application, appeal or petition to the Board of Adjustment shall be made in written form to the Town Clerk and shall include the data required so as to supply all of the information necessary for a clear understanding of the matter sought to be determined. Plans and drawings must be complete and explicit. No application, appeal or petition shall be accepted absent the payment of all required fees.

(B)

Any communication purporting to be an application, appeal or petition shall be regarded as mere notice of intention to seek relief until it is made in the form required.

(C)

If the application, appeal or petition fails to supply the required data within ten (10) days, the case may be dismissed for lack of prosecution.

(D)

When an appeal is filed, the Town Clerk shall forthwith transmit to the Board of Adjustment all papers pertaining to the case.

(E)

One (1) copy of every application, appeal or petition to the Board of Adjustment shall be filed with the Town Clerk. The Town Planner may make its views and comments of such application, appeal or petition known to the Board of Adjustment. Said views or comments will be in a written form or in a verbal commentary.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Each case filed in the proper form with the required data shall be numbered serially, regardless of whether it is an application, appeal or petition, and shall be placed on the first available agenda of the Board of Adjustment. Case numbers shall begin anew on January 1 of each year, e.g., 02-1.

(B)

As soon as a case receives a calendar number, the applicant or appellant shall be notified of the date when his or her case will be heard, such notice to be by certified or U.S. mail, sent to the address given on the application, appeal or petition, or by hand delivery.

(C)

Public notice shall be made in conformance with Article IV of this Chapter.

(D)

Any applicant, petitioner or appellant must appear in person or be represented by an agent. Any resident or taxpayer of the Town who desires to oppose or support the application, petition or appeal, or to be heard at such hearing, must appear in person or by agent or by attorney, or must submit his or her information or comments in written form in advance of the hearing.

(Ord. 2015-3, §1, 1-4-2016)

(A)

All decisions of the Board of Adjustment on an application for a variance shall be made by written resolution upon the affirmative vote of a quorum of the Board of Adjustment. The resolution shall set forth the grounds and reasons therefor.

(B)

The final disposition of any appeal before the Board of Adjustment shall be in form of a written resolution affirming, reversing or modifying the order, requirement, decision or determination appealed. If a resolution fails to receive a majority of the quorum in favor of the appellant the appeal will be deemed denied and entered upon the record.

(C)

No application, petition or appeal dismissed or denied can be considered again except:

1.

On a motion to reconsider the vote.

2.

On a request for a rehearing.

3.

No request to reconsider or to grant a rehearing on an appeal or the denial of a variance will be entertained unless it is made in writing to the Town Clerk prior to the next regularly scheduled meeting of the Board of Adjustment and new evidence is submitted which could not have been, with due diligence, presented at the previous hearing. All reconsiderations or rehearings to be undertaken by the Board of Adjustment must be properly noticed in advance in accordance with the notice provisions set forth in Article IV of this Chapter.

(D)

The Board of Adjustment may, on a motion by any member who initially voted on the subject matter, review any decision that is made and may reverse or modify such decision; but no such review shall prejudice the rights of any person who has, in good faith, already acted upon the initial decision subject to review. Any motion to review an earlier decision must be made by not later than the meeting next following the meeting at which the initial decision was made, and no new information or facts may be considered in determining whether to reverse or modify an initial decision absent advance notice and a public hearing thereon.

(Ord. 2015-3, §1, 1-4-2016)

In the exercise of its powers, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from; may make such order, requirement, decision or determination as ought to be made; and, to that end, shall have all of the powers of the officer or department from whom the appeal is taken. Except as elsewhere provided, and subject to the limitations enumerated herein, the Board of Adjustment shall have and exercise the following powers:

(A)

Administrative review: To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative official in the administration of this Chapter;

(B)

Vary terms of this Chapter: The Board of Adjustment may authorize upon application in specific cases such variances from the terms of this Chapter, subject to terms and conditions fixed by the Board of Adjustment, as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, literal enforcement of the provisions of this Chapter will result in unnecessary hardship. Every variance authorized hereunder shall not be personal to the applicant therefor but shall run with the land. No variance shall be authorized hereunder unless the Board of Adjustment shall find that the following conditions exist:

1.

That the variance will not authorize the operation of a use other than those uses specifically enumerated as a primary permitted use for that district in which the property is located and for which the variance is sought;

2.

One or more of the following special circumstances or conditions exist with respect to the specific property:

a.

Exceptional narrowness, shallowness, or shape of the property at the time of the enactment of the regulation in question;

b.

Exceptional topographic conditions of the property; and

c.

Other extraordinary and exceptional situations or conditions of the property.

3.

The special circumstances and conditions have not resulted from any act of the applicant.

4.

That the variance, if granted, will not alter the essential character of the neighborhood or district in which the property is located, or substantially or permanently impair the appropriate use or development of adjacent property;

5.

That the variance, if granted, is the minimum that will afford relief and is the least modification possible of the provisions of this Chapter which are in question;

6.

That the granting of the requested variance would relieve a peculiar, exceptional and undue hardship on the applicant, provided that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning regulations as embodied in this Chapter and the Zoning Map.

7.

That the variance, if granted, will not adversely affect the public health, safety and welfare.

(C)

Nonconforming uses and buildings: To authorize, subject to terms and conditions fixed by the Board of Adjustment and upon application in specific cases, a variance permitting an increase in either or both the land area or the floor area of a nonconforming structure, or a structure occupied by a nonconforming use, as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstance, literal enforcement of the provisions of this Chapter will result in unnecessary hardship. Every variance authorized hereunder shall not be personal to the applicant therefor, but shall run with the land; but only after the construction of any authorized structure and only for the life of such structure or structures. No variance shall be authorized hereunder unless the Board of Adjustment shall find that the following conditions exist:

1.

To allow or disallow the reconstruction, within one (1) year, of a nonconforming building which has been destroyed by fire or other cause to the extent of more than fifty percent (50%) of its replacement value at the time of destruction;

2.

That the circumstance aforesaid were not created by the owner of the use;

3.

That the variance will not further injure the appropriate use of adjacent conforming property in the same district;

4.

Where the boundary line of any district divides property which was in a single ownership on the effective date of this Chapter, or any amendment thereto, and continued in single ownership to the time of the application, the Board of Adjustment may permit the use authorized by this Chapter on the less restricted portion of such property to an extent determined reasonable by the Board of Adjustment.

(D)

Application for variance: All applications for a variance hereunder shall be filed with the Town Clerk on a form approved by the Town. All variances must be at the request of or with the written permission of the property owner. The Board of Trustees may establish a variance fee schedule. If such fee is established, the applicant for a variance request must pay the applicable fee at the time of the submission of the application.

1.

No application for a variance from the procedures prescribed by this Chapter shall be heard by the Board of Adjustment except in a specific case or appeal from an order, requirement, decision or determination made by the Building Official or other officer charged with enforcing the provisions of this Chapter.

2.

No application seeking a variance and involving an appeal shall be entertained unless the application is filed within ten (10) days after the date of the action sought to be challenged or appealed.

3.

As soon as any application is completed by the filing of the necessary data, the Board of Adjustment shall fix a reasonable time for the hearing and give due notice thereof in conformance with Article IV of this Chapter.

4.

At the time of the hearing, the applicant shall state his or her case, then the opposition shall be heard and the applicant shall have the opportunity to reply.

5.

No application that has been dismissed or denied can be entertained in a case where the applicant, by filing of new plans, has obtained a new decision from the Building Official.

6.

No application, appeal or petition previously denied and pertaining to the same requests will be accepted for consideration by the Board of Adjustment within one (1) year from the date of denial of the prior application.

(Ord. 2015-3, §1, 1-4-2016)

(A)

In addition to the common submittal requirements in Article III, the following submittal items are required.

1.

A narrative which describes in detail the proposed variance (use additional sheets as necessary and include reference(s) to applicable section(s) of the municipal code);

2.

Explain how the proposed variance is the minimum needed to make possible the reasonable use of the subject land, building or structure;

3.

Describe and justify how the proposed variance is necessary to relieve a hardship or practical difficulty imposed by the strict application of the subject regulation(s);

4.

Explain how the variance is not a request to permit a use of land, building or structure that is not permitted by right or by special use permit in the applicable zone district;

5.

Describe in detail the extraordinary or exceptional conditions pertaining to the particular structure, place or property in question that are not applicable to other lands or structures in the same district;

6.

Identify how the requested variance will be in harmony with the purpose and intent of this Chapter and will not adversely impact adjacent properties, the neighborhood or the general welfare of the Town of Fairplay;

7.

Explain how the extraordinary and exceptional circumstances pertaining to the variance ARE NOT the result of the actions of the applicant;

8.

Other information in support of the variance request.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Concurring vote required. The concurring vote of the majority of the quorum present of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any ordinance over which it has been granted the jurisdiction of review.

(B)

Powers strictly construed. Nothing herein contained shall be construed to empower the Board of Adjustment to change the terms of this Chapter, to effect changes in the Zoning Map or to add to the specific uses permitted in any district.

(C)

The powers of the Board of Adjustment shall be so construed that this Chapter and the Zoning Map are strictly enforced.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Appeals to the Board of Adjustment may be made by any aggrieved person or by any officer, department or board of the Town, or affected by the decision of the Building Official or other enforcement officer in administering these regulations. Such appeal shall be filed within ten (10) days after the date of the final decision of the Building Official by filing with the Building Official and the Board of Adjustment a written notice of appeal specifying the grounds thereof and by paying a filing fee at the time notice is filed.

(B)

Appeals to the Board of Adjustment shall be publicly noticed in conformance with Article IV or this Chapter.

(C)

The concurring vote of a majority of the quorum of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of the Building Official or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter, or to effect any variance herein. An appeal may be taken from any final action of the Building Official to the Board of Adjustment by any person aggrieved, or by an officer, department or Board of the Town.

(D)

Proper and timely filing of an appeal shall stay all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Board of Adjustment, after the notice of appeal, that by reason of the facts stated in the certificate, such stay would cause imminent peril to life or property.

(Ord. 2015-3, §1, 1-4-2016)

Members of the Board of Adjustment may be removed by the Board of Trustees for inefficiency, neglect of duty, excessive absenteeism or malfeasance in office.

(Ord. 2015-3, §1, 1-4-2016)