This article shall be referred to as the hardship relief/variances and regulations of the town land development code.

(Ord. No. 5-92, § 10.2, 8-25-92)

The purpose of this article is to provide mechanisms for obtaining relief from the provisions of this chapter where hardship would otherwise occur. Section 34-683 addresses the hardship that may be caused in particular cases by the imposition of this chapter's development design standards while section 34-685 addresses hardship that may be caused by compliance with the flood prevention restrictions.

(Ord. No. 5-92, § 10.3, 8-25-92)

(a)

Variances granted by planning commission. The planning commission may grant a variance from the strict application of any provision of this chapter, except the land use designations in article IV of this chapter and all provisions in article X of this chapter, if the following procedures are followed and findings made.

(b)

Variances to be considered part of development review. Any person desiring to undertake a development activity not in conformance with this chapter may apply for a variance in conjunction with the application for development review. A development activity that might otherwise be approved by the town building official must be approved by the planning commission if a variance is sought. The variance shall be granted or denied in conjunction with the application for development review.

(Ord. No. 5-92, § 10.4, 8-25-92)

(a)

Initial determination. The planning commission shall first determine whether the need for the proposed variance arises out of the physical surroundings, shape, topographical condition, or other physical or environmental conditions that are unique to the specific property involved. If so, the planning commission shall make the following required findings based on the granting of the variance for that site alone. If, however, the condition is common to numerous sites so that requests for similar variances are likely to be received, the planning commission shall make the required findings based on the cumulative effect of granting the variance to all who may apply. In no case may a variance alter the permissible use of land. If a change in the use of land is sought then the applicant must apply for a land use change through a plan amendment or through a revision of the land development regulations.

(b)

Required findings. The planning commission shall not vary the requirements of any provision of this chapter unless it makes a positive finding, based on substantial competent evidence, on each of the following:

(1)

There are practical or economic difficulties in carrying out the strict letter of the regulation.

(2)

The variance request is not based exclusively upon a desire to reduce the cost of developing the site.

(3)

The proposed variance will not substantially increase congestion on surrounding public streets, the danger of fire, or other hazard to the public.

(4)

The proposed variance will not substantially diminish property values in, nor alter the essential character of, the area surrounding the site.

(5)

The effect of the proposed variance is in harmony with the general intent of this chapter and the specific intent of the relevant subject area(s) of this chapter.

(c)

Imposition of conditions. In granting a development approval involving a variance, the planning commission may impose such conditions and restrictions upon the premises benefitted by a variance as may be necessary to allow a positive finding to be made on any of the foregoing factors, or to minimize the injurious effect of the variance.

(Ord. No. 5-92, § 10.5, 8-25-92)

(a)

Additional findings. In addition to the findings required above, the planning commission shall find that the requested variance will not result in an increase in the elevation of the base flood, additional threats to public safety, additional public expense, the creation of nuisances, fraud or victimization of the public, or conflicts with other local ordinances.

(b)

Considerations. Before granting a variance the planning commission shall consider:

(1)

The danger that materials may be swept from the site onto other lands.

(2)

The danger to life and property from flooding or erosion.

(3)

The potential of the proposed facility and its contents to cause flood damage and the effect of that damage on the owner and the public.

(4)

The importance of the services provided by the proposed facility to the community and whether it is a functionally dependent facility.

(5)

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

(6)

The compatibility of the proposed use with existing and anticipated neighboring development.

(7)

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

(8)

Safe vehicular access to the property in times of flood.

(9)

The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and effects of wave action, if applicable, at the site.

(10)

The costs of providing governmental services during and after floods including maintenance and repair of public utilities and facilities.

(c)

Special restriction for regulatory floodways. Variances that would increase flood levels during the base flood shall not be issued within any regulatory floodway.

(d)

Flowage easements. No variance that would increase flood damage on other property shall be granted unless flowage easements have been obtained from the owners of all affected properties. In no event shall a variance be granted that would increase the elevation of the base flood more than one foot.

(e)

Notification. All variances to the flood damage prevention regulations shall:

(1)

Specify the difference between the flood protection elevation and the elevation to which the structure is to be built.

(2)

State that the variance will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage.

(3)

State that construction below the flood protection level increases risks to life and property.

(f)

Record of variances to be maintained. The building official shall maintain a record of all variances including the justification for their issuance and a copy of the notice of the variance. The building official shall report all variances in the annual or biennial report to the town commission.

(g)

Historic properties. Notwithstanding the foregoing requirements, special variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on, or classified as contributing to a district listed on, the National Register of Historic Places, the local register of historic places or the state inventory of historic places. The special variance shall be the minimum necessary to protect the historic character and design of the structure. No special variance shall be granted if the proposed construction, rehabilitation, or restoration will cause the structure to lose its historical designation.

(Ord. No. 5-92, § 10.6, 8-25-92)