A.   The board of adjustment is hereby established to act on variance applications as detailed in this chapter. The board consists of five (5) members appointed by the mayor for three (3) year terms, subject to confirmation by the city commission. One member of said board of adjustment shall be a member of the city commission.

   B.   The board shall appoint one of its members as chairman and shall establish its operating rules in accordance with section 76-2-321(3), Montana Code Annotated.

   C.   The board's office shall be that of the city community development department. All files of the board shall be kept in said office.

   D.   The staff of the community development department will receive and process applications to the board for variances and give advice to the board.

   E.   The city commission may, in its discretion, appoint one alternate member of the board. The term of the alternate member shall be for three (3) years from the date of appointment. The alternate member will serve on the board of adjustment only in the event a regular member of the board is unable to attend a regularly scheduled meeting of the board. (Ord. 3097, 4-7-2008)

   A.   The board of adjustment may, after public notice and hearing, approve, conditionally approve, or deny requests to vary the following requirements of this title:

      1.   Lot line setback requirements;

      2.   Lot coverage and area requirements;

      3.   Building height;

      4.   Parking and loading space regulations;

      5.   Location, height, area, and number of signs; and

      6.   Landscaping requirements.

   B.   The board of adjustment may hear and decide appeals at a legally advertised public hearing where it is alleged there is error in any decision, order, or action described in sections 11-1-7 and 11-1-8 of this title that is made by the city manager.

   C.   The board of adjustment may not grant a variance from the requirements of the wildland-urban interface overlay district.

(Ord. 3097, 4-7-2008; amd. Ord. 3258, 6-24-2019)

   A.   The city commission has the sole authority to grant height variances for towers. The city commission shall follow the standards and criteria of this chapter when considering a variance for the height of a tower.

   B.   The city commission may grant a variance from the requirements listed above if the requested variance is related to an application for a conditional use. The city commission shall follow the standards and criteria listed below when considering a variance. Additional review by the board of adjustment is not required on variances that are related to an application for a conditional use. The city commission hereby reserves this authority unto itself pursuant to section 76-2-321(2), Montana Code Annotated, and further reserves unto itself any and all other authority not hereinabove granted to the board of adjustment. (Ord. 3097, 4-7-2008)

Written applications for variances must be filed in the office of the community development department on forms provided by the city. No application will be regarded as having been filed until the required fee is first paid to the community development department. (Ord. 3097, 4-7-2008)

   A.   Notice of the board's hearing of each application must be published in a newspaper of general circulation within the city once, at least fifteen (15) days prior to the hearing date.

   B.   The board of adjustment shall hold a public hearing on the application to gather facts and information. Persons interested in the requested variance and community development department staff may testify at the public hearing.

   C.   To approve a requested variance for a new building or portion thereof, the board of adjustment shall consider the following standards and find as follows:

      1.   The variance will not create a significant risk to the public health, safety, or general welfare;

      2.   The variance will not significantly reduce or impair the peaceful use of existing property or improvements in the vicinity and the zoning district in which the subject property is located; and

      3.   Strict compliance with the provisions of this title would create unnecessary hardship or practical difficulty.

   D.   In evaluating the standards in subsection C of this section, the board of adjustment may consider the following factors:

      1.   Special conditions and circumstances that are unique to the applicant's site, including the size of the property, unusual or extreme topography, or unusual shape of the property.

      2.   The height, location, or dimensions of existing structures located on the site or in the vicinity of the site.

      3.   Whether there is a prevalence of nonconformities in the vicinity of the site that are similar to the variance requested.

      4.   The subsequent imposition of zoning restrictions creating nonconforming lots or parcels, and governmental actions beyond the applicant's control.

      5.   Whether a literal interpretation of the provisions of this title would deprive the property owner of rights commonly enjoyed by other properties similarly situated in the same district under the terms of this title.

      6.   The extent to which the hardship or difficulty results from the actions of the applicant.

      7.   Whether granting the variance requested will confer an unreasonable special privilege to the subject property that is not available to other properties similarly located in the same zoning district.

   E.   A property owner who desires to reconstruct a nonconforming building or nonconforming portion of a building must apply for a variance. When reviewing the variance to reconstruct a nonconforming building, the property owner is entitled to a rebuttable presumption that the standards in subsection C of this section are met if the property owner can prove the existence of the prior nonconformity and that the nonconformity can be in compliance with building and fire codes.

   F.   The board of adjustment may impose conditions to minimize adverse impacts that the variance may have on the public health, safety, or general welfare. Any approval that includes conditions is subject to the terms of the conditions. Conditions stated in the approval may include, but are not limited to:

      1.   A time period in which the proposed structure shall be completed; and

      2.   Other conditions necessary to mitigate adverse effects from the variance.

   G.   Any variance from the maximum number of off street parking spaces, as specified in section 11-22-6 of this title, must require that a minimum of twenty percent (20%) of the parking area be landscaped in accordance with the standards in chapter 22 of this title. This landscaping is in addition to the requirements of chapter 24 of this title. The board of adjustment may also place conditions, within applicable city code provisions, on the location and permissible types of surfacing materials for off street parking and loading areas.

   H.   If a variance to the zero foot setback is requested in Downtown or Transitional Residential Districts, the maximum setback allowable along the primary and secondary lot line cannot exceed ten (10) ft.

(Ord. 3097, 4-7-2008; amd. Ord. 3258, 6-24-2019)