The development review board is empowered to authorize a variance from the provisions of this chapter on appeal under division 4 of this article, for specific cases where, owing to special conditions of a property, literal enforcement of this chapter will result in an unnecessary hardship. In accordance with 24 V.S.A. § 4469, however, the development review board may approve a variance only if all of the following facts are found, and the findings are specified in its written decision:

(1)

That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the land use development regulations in the neighborhood or district in which the property is located;

(2)

That, because of such physical circumstances and conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;

(3)

That the unnecessary hardship has not been created by the appellant;

(4)

That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare; and

(5)

That the variance, if authorized, will represent the minimum that will afford relief and will represent the least deviation possible from the land use development regulations and from the plan.

(Ord. No. O-2019-2, § 6.2(A), 9-23-2019; Ord. No. 2022-2, 10-24-2022)

On an appeal for a variance from the provisions of this chapter that is requested for a structure that is primarily a renewable energy resource structure, the development review board may grant such variance only if it finds that all of the facts listed in 24 V.S.A. § 4469(b) are found in the affirmative and specified in its decision.

(Ord. No. O-2019-2, § 6.2(B), 9-23-2019; Ord. No. 2022-2, 10-24-2022)

Variances within the flood hazard area overlay district shall be granted by the development review board only in accordance with 24 V.S.A. § 4469(d) and the criteria for granting variances found in 44 CFR 60.6 of the National Flood Insurance Program regulations, and article IX, division 2, subdivision III, of this chapter.

(Ord. No. O-2019-2, § 6.2(C), 9-23-2019; Ord. No. 2022-2, 10-24-2022)

In granting a variance, the development review board may impose conditions it deems necessary and appropriate under the circumstances to implement the purposes of this chapter and the municipal plan currently in effect. In no case shall the development review board grant a variance for a use which is not permitted or conditionally permitted within the zoning district, or which results in an increase in allowable density.

(Ord. No. O-2019-2, § 6.2(D), 9-23-2019; Ord. No. 2022-2, 10-24-2022)

As allowed under 24 V.S.A. 4414(8), a waiver of dimensional standards (front, rear and side yard requirements) may be applied for within any zoning district. All waiver applications are subject to approval by the development review board, and shall meet the requirements and review procedures under section 30-723 for conditional uses as well as the following waiver provisions.

(1)

Applicability. Waivers of dimensional setbacks are limited to reductions to any required front, side or rear setback for legally existing primary structures to accommodate:

a.

ADA accessibility improvements;

b.

Life safety improvements;

c.

Unheated, open-sided additions (e.g., decks, stairways, entryways, etc.);

d.

Building systems (e.g., air conditioning, generators); or

e.

Renewable energy structures that could not be reasonably developed without a waiver.

f.

Dimensional standard required per the highway corridor overlay district.

(2)

Review criteria. The development review board may approve a waiver request upon finding that:

a.

Granting a waiver will not result in an unsafe condition of the lot or to the public.

b.

The proposal incorporates design techniques (restricted height, lack of windows), screening (fencing or plantings) or other remedies to reasonably limit impact or the potential for impact upon the neighbors or public rights-of-way.

c.

The waiver requested will not impair sight distances on, nor impede the maintenance of, public or private roads or sidewalks.

d.

The proposed work or construction does not encroach into the required front, side or rear yard setbacks any more than necessary to accomplish the desired results.

e.

The proposed development is compatible in scale and design of structures and the overall existing development pattern of the surrounding area.

f.

The waiver resolves a practical difficulty in developing the property and allows reasonable use of the property.

g.

In the case of historic properties, the waiver is essential to the preservation and renovation of the historic building or the preservation of the historic pattern of land use of the surrounding area.

(3)

Decisions and conditions. The development review board shall make its decision on the request for waiver by applying the facts presented both in the application and at the public hearing to the criteria listed herein. In approving a waiver request, the development review board shall determine and may impose conditions to ensure that the waiver is the minimum required to afford relief and represents the least deviation possible from the dimensional requirements. These conditions may include, but need not be limited to, the following:

a.

Limiting the size of the structure;

b.

Requiring the mitigation of impacts to adjoining properties and/or uses, to public rights-of-way through building design (e.g., limiting window placement), layout, landscaping or screening;

c.

Reducing the encroachment into the required front, side or rear yard setbacks;

d.

Reducing the waiver requested to ensure that the waiver represents the minimum waiver that will afford relief and will represent the least deviation possible from the land use development ordinance; and

e.

Controlling the location and number of vehicular access points.

f.

Requiring the application to have professional site plans prepared by a surveyor, engineer, architect or landscape architect licensed by the State of Vermont.

(4)

Limitations of waiver approval. Any waiver granted under this section shall be limited to the specific property to which it has been granted. A waiver on one property shall not be construed as a general guideline or standard for any other property.

(Ord. No. 2022-2, 10-24-2022)