(a)

All variances to this chapter shall be considered, granted or denied by the zoning board of appeals as provided for in section 30-366.

(b)

The town council is vested with the authority to issue special exceptions to this chapter.

(c)

In considering a special exception to this chapter, the town council may request from the property owner such information, sketches, diagrams or other documentation as it deems advisable and may request access to the property in question for the purpose of establishing conditions for the exception.

(d)

The town council shall be prohibited from granting special exceptions under the following conditions:

(1)

Where such an exception would be inconsistent with good zoning practices.

(2)

Where such an exception would in fact have the same effect as a variance issued by the zoning board of appeals.

(3)

Where such an exception would affect an amendment to this chapter or a rezoning.

(e)

The town council shall consider special exceptions to this chapter only for uses or activities so specified herein; activities not included within this chapter shall require an amendment or rezoning as provided for in section 30-59.

(f)

Where both a special exception and variance are required, the issuance of a special exception shall be conditioned upon the granting of such variances by the zoning board of appeals. Denial of such variances shall void the special exception as permitted by the town council.

(g)

An application for a special exception and use permit shall be submitted to the administrator in the same manner prescribed for an application for zoning permit. At the administrator's discretion, or at the request of the town council, the application may be submitted to the planning commission for review and recommendation. When submitted, the commission shall have 60 days after the first meeting of commission after said application has been referred to the commission to return recommendations to the town council. Failure of the commission to report within said time shall be deemed approval.

(h)

A public hearing shall be advertised and held by the town council prior to the issuance of any special exception and use permit. Where the application for a special exception and use permit affects 25 or less parcels of land, in addition to the requirements of the first sentence, written notice shall be given at least five days in advance of the hearing date to the owner or owners of each parcel involved, and to the owners of all abutting property and property which may be situated across a street, right-of-way or other barrier from the property affected. Such notices shall be delivered by certified mail, the cost of which to be defrayed by the applicant. Where more than 25, but less than 500 parcels are involved, delivery by first class mail shall satisfy the requirements of this section.

(Comp. Ords., § 24.12)

(a)

The board of zoning appeals.

(1)

A board of zoning appeals consisting of five residents of the town shall be appointed by the circuit court of the county. One member of the board shall be a member of the planning commission.

(2)

Any member of the board shall be disqualified to act upon a matter before the board with respect to property in which the member has a legal interest.

(3)

The creation, organization, and membership of the board of zoning appeals shall be in accordance with state law.

(b)

Powers of the board of zoning appeals.

(1)

The board of zoning appeals shall have the following powers and duties:

a.

To hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of this chapter or of any ordinance adopted pursuant thereto.

b.

To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of district boundary.

c.

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of provisions will result in unnecessary hardship, provided that the spirit of the ordinance shall be observed and substantial justice done.

(2)

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size, or shape of a specific piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic condition or other extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of the property or where the Board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance.

(3)

No such variance shall be authorized by the board unless it finds:

a.

That the strict application of the ordinance would produce undue hardship;

b.

That such hardship is not shared generally by other properties in the same zoning district and the same vicinity;

c.

That the authorization of such variance will not be of substantial detriment to adjacent property; and

d.

That the character of the district will not be changed by the granting of the variance.

(4)

No such variance shall be authorized except after notice and hearing as required in state law. All costs associated with this notice and hearing shall be defrayed by the applicant.

(5)

No variance shall be authorized unless the board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the chapter.

(6)

In authorizing a variance, the board may impose such conditions regarding the location, character, and other features of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or bond to insure that the condition imposed are being and will continue to be complied with.

(7)

No provision of subsection (b)(1) of this section shall be construed as granting the board of zoning appeals the power to rezone property or to grant special exceptions to this chapter.

(8)

Where a variance is being considered for a floodprone area as set out in chapter 12, the board of zoning appeals shall satisfy all relevant factors and procedures specified in other sections of this chapter and consider the following additional factors:

a.

The danger to life and property due to increased flood heights or velocities caused by encroachments. No variance shall be granted for any proposed use, development, or activity within any floodway district that will cause any increase in the 100-year flood elevation.

b.

The danger that materials may be swept on to other lands or downstream to the injury of others.

c.

The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions.

d.

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.

e.

The importance of the services provided by the proposed facility to the community.

f.

The requirements of the facility for a waterfront location.

g.

The availability of alternative locations not subject to flooding for the proposed use.

h.

The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.

i.

The relationship of the proposed use to the comprehensive plan and floodplain management program for the area.

j.

The safety of access by ordinary and emergency vehicles to the property in time of flood.

k.

The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site.

l.

The repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

m.

Such other factors which are relevant to the purposes of this chapter.

(c)

The board of zoning appeals may refer any application and accompanying documentation pertaining to any request for a variance to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities, and the adequacy of the plans for flood protection and other related matters.

(d)

Variances shall be issued only after the board of zoning appeals has determined that the granting of such will not result in:

(1)

Unacceptable or prohibited increase in flood heights;

(2)

Additional threats to public safety;

(3)

Extraordinary public expense;

(4)

Create nuisances;

(5)

Cause fraud or victimization of the public; or

(6)

Conflict with local laws or ordinances.

(e)

Variances shall be issued only after the board of zoning appeals has determined that such variances will be the minimum required to provide relief from any hardship to the applicant.

(f)

The board of zoning appeals shall notify the applicant for a variance, in writing, that the issuance of a variance to construct a structure below the 100-year flood elevation

(1)

Increases the risks to life and property; and

(2)

May result in increased premium rates for flood insurance.

(g)

A record shall be maintained of the above notification as well as all variance actions, including justification for the issuance of the variances. Any variances which are issued shall be noted in the annual or biennial report submitted to the Federal Insurance administrator.

(h)

Rules and regulations.

(1)

The board of zoning appeals shall adopt such rules and regulations as it may consider necessary.

(2)

The meeting of the board shall be held at the call of its chairman or acting chairman upon two days' written notice to all members.

(3)

The chairman, or, in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses.

(4)

The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact. It shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

(5)

All meetings of the board shall be open to the public.

(6)

A quorum shall be a majority of the members of the board.

(7)

A favorable vote of the majority of the members of the board shall be necessary to reverse any order, requirement decision, or determination of any administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass.

(i)

Appeal to the board of zoning appeals. Any appeal to the board may be taken by any person aggrieved or by any officer, department, board, or bureau of the county or municipality affected by any decisions of the zoning administrator. Such appeal shall be taken within 30 days after the decision by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed was taken. An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board that, by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the board or by a court of record, on application and on notice to the zoning administrator and for good cause shown.

(j)

Appeal procedure.

(1)

Appeals shall be mailed to the board of zoning appeals in care of the zoning administrator, and a copy of the appeal mailed to the secretary of the planning commission. A third copy should be mailed to the individual officer, department, or agency concerned, if any.

(2)

Appeals requiring an advertised public hearing shall be accompanied by a certified check for $40.00 payable to the town.

(k)

Public hearing. The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within 60 days of the conclusion of the hearing. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination of an applicant on any matter upon which it is required to pass under the ordinance or may affect any variance from the ordinance.

(l)

Appeal of the decision of board of zoning appeals.

(1)

Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer or any officer, department, board, or bureau of the municipality, may present to the county circuit court a petition specifying the grounds of the grievance within 30 days after filing of the decision of the board.

(2)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from; but the court may, on application, on notice to the board, and on due cause shown, grant a restraining order.

(3)

The board of zoning appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(4)

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(5)

Costs shall not be allowed against the board, unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed from.

(Comp. Ords., § 24.13)

(a)

All officials of the town which are vested with the duty or authority to issue permits or licenses shall conform to the provisions of this chapter. They shall issue permits for uses, buildings, or purposes only when they are in harmony with the provisions of this chapter. Any such permit, if issued in conflict with the provisions of this chapter, shall be null and void.

(b)

Any person, firm, corporation, whether as principal, agent, employed, or otherwise, violating, causing, or permitting the violation of any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, may be fined up to $1,000.00. Such person, firm, or corporation shall be deemed to be guilty of a separate offense for each and every day during which any portion of any violation of this chapter is committed, continued, or permitted by such persons, firm, or corporation, and shall be punishable as herein provided.

(c)

In addition to the above penalties, all other actions are hereby reserved, including an action in equity for the proper enforcement of these provisions. The imposition of a fine or penalty for any violation of, or noncompliance with, these provisions shall not excuse the violation of noncompliance to permit it to continue; and all such persons shall be required to correct or remedy such violations or noncompliance within a reasonable time. Additionally, any structure constructed, reconstructed, enlarged, altered, or relocated in noncompliance with these provisions may be declared by the town council to be a public nuisance and abatable as such. Flood insurance may be withheld from structures constructed in violation of these provisions.

(Comp. Ords., § 24.14)