The purpose of a variance is to provide relief when a strict application of the district requirements would impose unusual practical difficulties or unnecessary physical hardships on the applicant. Practical difficulties and unnecessary hardships may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other conditions on the site or in the immediate vicinity. No variance shall be granted to allow the use of property for a purpose not authorized within the district in which the proposed use would be located. A variance cannot be self-created. A variance should be granted only after evidence is presented and accepted that enforcement of all of the required standards on the property in question would render the property useless. This article establishes conditions; criteria for granting variances; public hearings on proposed variances; variances to road requirements; variance procedures; compliance with conditions of approval; vested interest in approved variances; investigations and reports; revocation; limitations on re-applications; and use variance.

(Res. No. 2019-09, 6-4-19)

(a)

Reasonable conditions may be imposed in connection with a variance as deemed necessary to protect the best interests of the surrounding property or neighborhood, and otherwise secure the purpose and requirements of this article. Guarantees and evidence may be required that such conditions will be and are being complied with. Such conditions may consist of, but are not limited to: setback requirements from any lot line; specified or prohibited locations for buildings, parking, loading or storage areas or other land uses; driveway curb cut restrictions; restrictions as to what land uses or activities shall be permitted; maximum building heights or other dimensions; special drainage or erosion provisions; landscaping or planted area, which may include the location, type and maintenance of plant materials; fences, walls, berms, or other buffering provisions or protective measures; preservation of existing trees or other vegetation; special measures to alleviate undesirable views, light, glare, noise, dust or odor; permitted hours of operation; architectural style; a requirement that the existing building(s) be retained; a requirement that developers must build according to the site plans as adopted; a limitation on exterior modifications of existing buildings; or any other requirement that the board of commissioners may deem appropriate and necessary as a condition of reclassification of use or issuance of a variance or special use permit.

(b)

The planning commission is responsible for considering and making recommendations on applications for variances. Variances apply only to the land use standards and requirements specified for each district. They do not apply to other provisions of this chapter.

(c)

The variance must specify which development standards and requirements are to be varied from. It must specify alternative standards and requirements to be met, replacing those varied from.

(Res. No. 2019-09, 6-4-19)

Variances to standards and requirements of this chapter, with respect to open area, setbacks, yard area, lot coverage, height of structures, vision clearance, and other quantitative requirements may be granted only if, on the basis of the application, investigation, and evidence submitted by the applicant, all four expressly written findings below are made:

(1)

That a strict or literal interpretation and enforcement of the specified standard or requirement would result in practical difficulty or unnecessary hardship; and

(2)

That there are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property which do not apply generally to other properties in the same district; and

(3)

That the granting of the variance will not be detrimental to the public health, safety, or welfare or materially injurious to properties or improvements in the near vicinity; and

(4)

That the granting of the variance would support general objectives contained within this chapter.

Variances in accordance with this article should not ordinarily be granted if the special circumstances on which the applicant relies are a result of the actions of the applicant or owner or previous owners.

(Res. No. 2019-09, 6-4-19)

Public hearings on proposed variances shall be in accordance with administrative procedures set forth in this resolution.

(Res. No. 2019-09, 6-4-19)

(a)

Before the planning commission may act on a variance; it shall give notice of a public hearing in the manner prescribed in this resolution.

(b)

The planning commission shall review the application and investigation report at the public hearing. The planning commission shall determine whether the evidence supports a finding that the required criteria have been met and recommend approval with condition, or denial of the application accordingly. Their recommendations shall be in writing and shall include written findings on each of the applicable criteria. If the planning commission fails to take action within 30 days after the public hearing, the request shall be deemed to have been approved.

(c)

Decision on variance requests shall be the responsibility of the planning commission and shall become final after an elapsed period of 30 days from the date of decision.

(d)

The planning commission's decision, with findings, shall be sent by mail to the applicant within five working days of the date of action.

(e)

From time to time the planning commission may find it necessary to require a variance request to also meet approval of the White County Board of Commissioners. In doing so the variance request must follow the public hearing procedures prescribed in this resolution.

(f)

An application of a variance which is not acted upon by the county commissioner within 90 days from the receipt of application may be deemed denied.

(g)

Application for a variance shall be filed with the planning director on the form prescribed by the county, by any person with a legal interest in the property.

(Res. No. 2019-09, 6-4-19)

Compliance with conditions imposed in the variance, and adherence to the submitted plans, as approved, is required. Any departure from these conditions of approval and approved plans constitutes a violation of this chapter.

(Res. No. 2019-09, 6-4-19)

A valid variance supersedes conflicting provisions of subsequent land uses or amendments to this resolution unless specifically provided otherwise by the provisions of this resolution or the conditions of approval to the variance.

(Res. No. 2019-09, 6-4-19)

The planning director shall make or cause to be made an investigation to provide necessary information to insure that the action on each application is consistent with the variance criteria and shall make a recommendation to the planning commission. Any report of such investigation shall be included in the application file.

(Res. No. 2019-09, 6-4-19)

Variances shall be automatically revoked if not exercised within one year of the date of approval.

(Res. No. 2019-09, 6-4-19)

Applications for which a substantially similar application has been denied shall be heard by the planning commission only after a period of 12 months has elapsed.

(Res. No. 2019-09, 6-4-19)

No variance may be granted for a use of land or building or structure that is prohibited by this chapter.

(Res. No. 2019-09, 6-4-19)

Withdrawals of any application may be accommodated within the planning department if requested before the planning commission agenda is set. Therefore, withdrawals may not be made after three business days prior to the scheduled planning commission meeting hearing, unless accompanied by written request stating specific reasons for withdrawal. Following that written request, the commission will vote to remove the item from the agenda at the scheduled hearing. Please note that should the withdrawal be denied, the item will receive deliberation and public hearing with a decision by the commission. Further, the applicant is encouraged to be present at the hearing to substantiate reasons for withdrawal. Please note that no refund of application fee may be made unless directed by the board of commissioners.

(Res. No. 2019-09, 6-4-19)

The director of community and economic development shall have the power to grant variances (except for density and use) from the development standards of this chapter if the intent of the appendix can be achieved and equal performance obtained by granting a variance.

(1)

Authority. The authority to grant variances in accord with this section shall be limited to variances from the following requirements:

a.

Front yard or a yard adjacent to a public street: Variances shall not exceed ten feet;

b.

Side yard: Variances shall not exceed five feet;

c.

Rear yard: Variances shall not exceed ten feet;

d.

Building height: A variance may be granted up to, but not exceeding, ten feet if such variance does not allow space habitable by humans and is also approved by the fire marshal and would not result in an increase in the number of stories that would otherwise be allowed by the land use district;

e.

Buffers: The dimensions of a landscaping buffer required by this chapter if the intent of the required buffer can be equally achieved; however, no buffer required as a condition of land use shall be modified;

f.

Parking: If the required parking standards cannot reasonably be met and if a variance will not adversely affect the spirit or intent of the appendix or this chapter, then a variance of not more than ten percent may be granted;

g.

Home occupations: If the intended use is clearly allowed pursuant to the definition of "Home occupation," then an administrative variance may be granted to conduct such business.

(2)

Notification. The applicant may choose to either submit an affidavit attesting to notice that includes signatures of all adjoining property owners listed within the application package or the applicant may choose to permit written notice from the county planning department to adjoining property owners of the variance application and then wait at least ten business days from notice to all adjoining property owners before the variance may be considered for approval. Also, notice of the variance application shall be posted upon the property 15 days before the variance is considered and shall state the variance requested and the date the variance shall be considered.

(3)

Basis for approval. The following criteria shall be considered by the director before allowing an administrative variance. No variance may be granted administratively for an application for a variance that has been heard by the planning commission within one year or if the application is for the expansion of a non-conforming use or structure.

a.

The variance neither interferes with the rights of others as provided in this chapter nor is injurious to the public health, safety, and general welfare;

b.

A strict interpretation and enforcement of the standards or requirement would result in practical difficulty or unnecessary hardship;

c.

No exceptional or extraordinary circumstances applicable to the subject property exist that do not generally apply to other properties in the same district;

d.

The variance provides for reasonable use under the specified circumstances of each application;

e.

The variance achieves the general intent of this chapter;

f.

The variance is the minimum possible variance under the specific circumstances; and

g.

The variance does not exceed the scope of the authority set forth in subsection (1) of this section.

(4)

Conditions of approval. The director of community and economic development may impose reasonable conditions upon any administrative variance to ensure that the public health, safety, and general welfare are protected. A violation of any imposed condition shall be a violation of this section.

(5)

Administration. After all requirements for a variance application in accord with the terms hereof are received, the planning and development department shall review and certify that all required information is complete and that the request is within the limits of consideration set forth in subsection (1) of this section. The applicant shall then be advised to proceed with public notice in accord with subsection (2) of this section. After required notice has been provided and the time period for response has passed, the planning director shall have ten business days to render a decision. Notice of the decision shall be provided to the applicant by mailing such decision within five business days of the decision. Notice of the action taken by the director shall be provided to the planning commission of White County and shall be placed as an item of old business for no further action upon the agenda of the planning commission within 31 days.

(6)

Compliance with other county codes. The effect of an administrative variance approval shall be that a specific request is determined to be appropriate for a specific location. The administrative variance application shall not approve a site plan nor waive or modify any other requirements of any other county code other than as specifically granted pursuant to the variance.

(7)

Appeal. The applicant or an adjoining property owner may appeal to the county commission the decision of the director regarding an administrative variance within ten days of the decision via written objection and appeal. Any such appeal shall be heard by the White County Board of Commissioners in accord with the standard appeal procedure.

(Res. No. 2019-09, 6-4-19)