(a)

Variance requests that satisfy the criteria of section 62-101 are authorized from the following regulations and standards:

(1)

Height;

(2)

Setbacks;

(3)

Off-street parking and loading requirements;

(4)

Lot coverage;

(5)

Such other provisions of the Code which do not specifically prohibit variance requests.

(b)

The Town shall not act upon any variance request that would:

(1)

Allow a use that is specifically or by inference prohibited in any zoning district classification, including an increase in the maximum density allowed within the zoning district;

(2)

Apply to any provisions for which the Code specifically prohibits waiver or modification.

(c)

In addition to the general application requirements, the applicant shall provide a site plan of sufficient detail to clearly identify the variance request, and an explanation of how the variance is in accordance with the criteria of section 62-101.

(Ord. No. C-368, § 6, 12-2-2013)

(a)

The Town Council, as applicable, shall hold its public hearing and, after consideration of the staff recommendation and public input, if any, may deny, approve or approve with conditions the application for variance, based upon its determination that the petitioner has demonstrated that the criteria provided in the following subsections (1) through (5) have been satisfied:

(1)

That the requested variance maintains the basic intent and purpose of the subject regulations, particularly as it affects the stability and appearance of the Town;

(2)

That the requested variance is otherwise compatible with the surrounding land uses and would not be detrimental to the community;

(3)

That the requested variance is consistent with, and in furtherance of, the goals, objectives and policies of the adopted comprehensive plan, as amended from time to time, and all other similar plans adopted by the Town;

(4)

That the plight of the petitioner is due to unique circumstances of the property or petitioner which would render conformity with the strict requirements of the subject regulations unnecessarily burdensome; and

(5)

That the variance requested is the minimum variance that is necessary to afford relief to the petitioner, while preserving the character, health, safety and welfare of the community.

(b)

In granting or denying any variance, the Town Council shall issue a development order in the form of a resolution. In approving a variance, the Town Council may prescribe conditions and safeguards intended to mitigate potential adverse impacts from the variance and to ensure that the intent and purpose of the Code is maintained. Violation of any of the conditions provided in a development order on a variance shall be deemed a violation of this Code.

(Ord. No. C-368, § 6, 12-2-2013)

(a)

The Town Council may prescribe a reasonable time limit within which the action for which the variance is required shall be begun or completed or both, based on the scale and complexity of the development for which the variance is requested provided that in the absence of such time limit, a variance shall expire unless:

(1)

The applicant submits all applications for development permits including construction drawings (if applicable) within 18 months of the date of approval;

(2)

The development permits remain valid until the project is complete; and

(3)

The conditions and limitations of the variance are satisfied.

(b)

It shall be the responsibility of the property owner to ensure that a variance does not expire.

(c)

The Town Council may grant an extension of 12 additional months if the applicant submits the extension request within 19 months of the date of approval and the applicant can demonstrate good cause for the delay. Good cause may include, but shall not be limited to, delay caused by governmental action or inaction or other factors totally beyond the control of the applicant.

(Ord. No. C-368, § 6, 12-2-2013)

(a)

A variance shall run with land once established (i.e., not expired or revoked).

(b)

Whenever the Town Council has denied a variance, the same shall not consider any further substantially equivalent request for variance on any part of the same property for a period of 12 months from the date of such action (or date of any final court order upholding denial of the variance), unless this restriction is waived by a unanimous vote of the members of the Town Council present at the time of the vote.

(Ord. No. C-368, § 6, 12-2-2013)

Special exception uses may be compatible with the other land uses permitted in a zoning district but, because of their unique characteristics and potential impacts on the surrounding neighborhood and Town as a whole, require individual review of their location, design, configuration, or operation in order to ensure that the use is appropriate at a particular location.

(Ord. No. C-371, § 4, 2-3-2014)

(a)

The applicant shall provide the following materials with its application for special exception approval, on a form application provided by the Town:

(1)

The existing and proposed use of the property;

(2)

The existing use, zoning, and land use designations of lands within 700 feet of the subject property;

(3)

A site plan or survey indicating the locations of the existing and proposed development, and areas where individual uses will take place;

(4)

Any other information as may be required by the Town for a determination of the nature of the proposed use and its consistency with the criteria for the approval of a special exception use.

(b)

The applicant for special exception approval shall make payment of an application fee in the amount set by resolution of the Town Council, in accordance with section 62-5.

(Ord. No. C-371, § 4, 2-3-2014)

(a)

Applications for special exception uses, including enlargement or modifications of an existing special exception use, shall be decided by the Town Council.

(b)

Special exception uses are matters that are quasi-judicial in nature. The petitioner shall bear the burden of providing competent substantial evidence that the special exception use should be granted.

(c)

An advertisement shall be published in the non-legal section of a local newspaper selected by the Town at least seven calendar days before the Town Council public hearing to consider the special exception use. Property owners of record within a 1,000-foot radius of the subject property scheduled for the special exception hearing before the Town Council shall be mailed a courtesy notice. The failure to mail or receive such courtesy notice shall not affect any action or proceedings taken by the Town Council. All costs of required advertisement, noticing and mailings shall be borne by the applicant.

(Ord. No. C-371, § 4, 2-3-2014; Ord. No. C-382, § 4, 10-6-2014)

(a)

The Town Council shall review the application to determine whether the special exception use complies with the following standards:

(1)

That the use is permitted as a special exception use as set forth in the use regulations of the zoning district in which it is located.

(2)

That the use will not cause a detrimental impact to the value of existing contiguous uses, uses in the general area, and to the zoning district where it is to be located.

(3)

That the use will be compatible with the existing uses on contiguous property, with uses in the general area and zoning district where the use is to be located and compatible with the general character of the area, considering population density, design, scale and orientation of structures to the area, property values and existing similar uses or zoning.

(4)

That adequate landscaping and screening are provided to buffer adjacent uses from potential incompatibilities.

(5)

That adequate parking and loading is provided, and ingress and egress is so designed as to cause minimum interference with traffic on abutting streets.

(6)

That the use will not have a detrimental environmental impact upon contiguous properties and upon properties located in the general area or an environmental impact inconsistent with the health, safety and welfare of the community.

(7)

That the use will not have a detrimental effect on vehicular or pedestrian traffic, or parking conditions, and will not result in the generation or creation of traffic inconsistent with the health, safety and welfare of the community.

(8)

That the use will not utilize turning movements in relation to its access to public roads or intersections, or its location in relation to other structures or proposed structures on or near the site that would be hazardous or a nuisance.

(9)

That the use will not have a detrimental effect on the future development of contiguous properties or the general area, according to the comprehensive plan.

(10)

That the use will not result in the creation of incompatible noise, lights, vibrations, fumes, odors, dust or physical activities, taking into account existing uses, uses located on contiguous properties, uses in the general area and the zoning in the vicinity due to its nature, duration, direction or character.

(11)

That the use will not overburden existing public services and facilities.

(b)

The Town Council may deny, approve, or approve the application with conditions. In issuing its decision to grant a special exception, the Town may place more restrictive requirements and conditions on applications than are provided in this chapter, when the conditions are based upon site considerations and its use, and the potentially resulting impacts upon the surrounding area or zoning district where the subject property is located.

(c)

If the applicant wishes to amend a special exception use approval, the proposed amendment shall be processed and reviewed in accordance with the procedures set forth in this article for new special exception uses.

(Ord. No. C-371, § 4, 2-3-2014)

(a)

All special exception approvals shall expire unless:

(1)

The applicant submits all development permit applications and construction drawings (if applicable) that are necessary to establish the special exception use within 18 months of the date of approval; and

(2)

All development permits remain valid until the project is complete.

(b)

It shall be the responsibility of the property owner to ensure that a special exception approval does not expire.

(c)

The Town Council may grant an extension of 12 additional months if the applicant submits the extension request within 12 months of the date of special exception approval, and the applicant can demonstrate good cause for the delay. Good cause may include, but shall not be limited to, delay caused by governmental action or inaction or other factors beyond the control of the applicant.

(Ord. No. C-371, § 4, 2-3-2014)

(a)

The use for which a special exception has been granted by the Town Council shall not be commenced by the owner, his or her agent or lessee until such time as all of the improvements stipulated in the grant of special exception necessary for the orderly use of the property have been completed.

(b)

Approval of a special exception use shall run with the property once established (i.e., not expired or revoked) unless otherwise stipulated as a condition of approval.

(c)

Upon denial of an application for special exception, there shall be a two-year waiting period before any applicant may submit an application for the same or substantially similar application and for the same property as that which was initially denied.

(d)

Whenever the Town has taken action to approve a special exception use, the Town shall not consider any application to modify the conditions of approval for a period of 12 months from the date of such action, unless the Town Council, as applicable, waives the time period in order to prevent injustice.

(Ord. No. C-371, § 4, 2-3-2014)