The Board of Adjustment shall, subject to the procedures, standards and limitations hereinafter set forth, have authority to review and grant or deny variances from the strict application of this chapter; provided, however, that the resolution of the Planning Board shall substitute for that of the Board of Adjustment whenever the Planning Board has jurisdiction, pursuant to § 163-135 or 163-144H of this chapter, over a variance from the space, bulk and yard requirements of this chapter or the requirements of § 163-46C and D of this chapter in conjunction with its review of an application for site plan/subdivision approval or conditional use approval.
The variance procedure is intended to provide a narrowly circumscribed
means by which relief may be granted from unforeseen particular applications
of the provisions of this chapter, where such provisions create peculiar
and exceptional practical difficulties or exceptional and undue hardships
or where special reasons exist for varying the use and structure restrictions
of such provisions. Only where no other procedure exists to remedy
such difficulty or hardship or to respond to such special reasons
is an application for relief pursuant to this article appropriate.
A.
General prohibitions. As set forth in § 163-169 of this chapter, the variance procedure of this article exists for the narrow purpose of responding to hardships, difficulties and special reasons of a unique nature which were unforeseen at the time of the adoption of this chapter. In adopting this chapter, the City has provided not only specific, preordained regulations but also, in Article XVIII, Part 5 and Part 3 of this chapter, a variety of administrative procedures whereby specific properties and uses may be given individual attention within the confines of a well-structured overall plan of development regulation. The variance procedure is essentially a procedure that operates outside of that structured plan and is, by its very purpose and definition, destructive of that plan. Therefore, the City Council hereby finds as a fact and states as its policy that no relief pursuant to this article can be validly granted in any case where relief pursuant to any other Article of this Part 5 or any Article of Part 3 of this chapter is or might be available.
[Amended 6-15-1988 by Ord. No. 1-1988]
B.
Nonuse variances.
(1)
Subject to the general prohibition of Subsection A above and to the other terms and provisions of this article, the Board of Adjustment may grant a variance from the strict application of any provision of this chapter, other than the provisions hereof restricting the uses to which land and structures may be devoted or the types of structures which may be located in a district and other than the provisions hereof restricting the erection of buildings and structures in public areas mapped on the Official Map or on lots not abutting a street, upon a showing that:
(a)
By reason of exceptional narrowness, shallowness or shape of
a specific piece of property; or by reason of exceptional topographic
conditions or physical features uniquely affecting the subject property;
or by reason of an extraordinary and exceptional situation uniquely
affecting a specific piece of property or the structures lawfully
existing thereon, the strict application of any regulation pursuant
to this act would result in peculiar and exceptional practical difficulties
to or exceptional and undue hardship upon the developer of such property.
[Amended 6-15-1988 by Ord. No. 1-1988]
(b)
Granting the requested variance would not result in a substantial
detriment to the public good or a substantial impairment of the goals
and purposes of the Master Plan, the Official Map, the capital improvements
program and this chapter.
(2)
No variance shall be granted pursuant to this subsection which
would allow a structure or use in a district restricted against such
structure or use. Any variance which would permit, on any lot or parcel,
one or more dwelling units in addition to the number that would be
permitted by a strict application of the provisions of this chapter
shall be considered to be within the prohibition of this subsection.
(3)
No variance shall be granted pursuant to this subsection which
would permit the erection of a building or other structure within
the bed of a street or public drainageway, flood control basin or
public area shown on the Official Map of the City or which would permit
erection of a building on a lot which does not abut a street giving
access to such building or structure.
(4)
No variance shall be granted by the Board of Adjustment pursuant to this subsection where the proposed development for which such variance is sought also requires site plan/subdivision approval or conditional use approval by the Planning Board in conjunction with which the Planning Board is required to review a request for a variance pursuant to § 163-135 or 163-144H of this chapter. In such cases, the application for variance shall be made and shall be reviewed by the Planning Board pursuant to § 163-135 or 163-144H of this chapter, whichever is applicable,
C.
Use variances.
(1)
Subject to the general prohibition of Subsection A above and to the other terms and provisions of this article, the Board of Adjustment may grant a variance to permit a use of a parcel of land or a structure or the location of a structure in a zoning district restricted against such use or structure upon a showing that:
(2)
No variance shall be granted pursuant to this subsection except
by the affirmative vote of at least 2/3 of the full authorized membership
of the Board of Adjustment.
D.
Official Map variances. Subject to the general prohibition of Subsection A above and to the other terms and provisions of this article, the Board of Adjustment may grant the following variances from the application of § 163-46B and C of this chapter upon the terms and conditions hereinafter specified:
(1)
Variance to permit erection of a building or other structure within reserved public area. Whenever one or more parcels of land, upon which is located the bed of a mapped street or public drainageway, flood control basin or other public area reserved pursuant to § 163-46B of this chapter, cannot yield a reasonable return to the owner unless a building permit is granted, the Board of Adjustment may grant a variance from the application of said subsection and direct the issuance of a permit for a building or structure in such reserved area. Every such variance shall be limited so as to increase the cost of opening such street or developing such drainageway, flood control basin or other public area as little as practicable and to cause the minimum possible change in the Official Map.
(2)
Variance to permit erection of a building or other structure which does not abut a street. Where the enforcement of § 163-46C of this chapter, requiring that no building permit be issued for any building or structure not abutting a street, would entail practical difficulty or unnecessary hardship or where circumstances do not require the proposed building or structure to be related to a street, the Board of Adjustment may grant a variance from the application of said subsection and direct the issuance of a building permit for the proposed building or structure. Every such variance shall be so conditioned as to assure that adequate access to such building or structure will be provided for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and so as to protect any future street layout shown on the Official Map or on the general circulation plan element of the Master Plan.
An application for a variance may be filed by the owner of or
any person having a contractual interest in the subject property.
A.
Application. Applications for a variance shall be submitted to the Land Use Administrator in such number of duplicate copies as he may from time to time require. Nonrefundable application and hearing fees, as established by Part 1, Article III, of this chapter, to help defray administrative costs and costs of a hearing shall accompany each application. The application shall be in such form and contain such information and documentation as shall be prescribed from time to time by the Land Use Administrator but shall in all instances contain at least the following information documentation:
(1)
The applicant's name and address and his interest in the subject
property.
(2)
The owner's name and address, if different than the applicant,
and the owner's signed consent to the filing of the application.
(3)
The names and addresses of all professional consultants advising
the applicant with respect to the proposed development.
(4)
The street address and legal description of the subject property.
(5)
The names and addresses of all owners of property located within
200 feet of the subject property as shown on the most recent property
tax records.
(6)
The zoning classification and present use of the subject property.
(8)
Where site plan/subdivision approval is not required, a site
plan, drawn to a scale of not less than 100 feet to the inch, on one
or more sheets, illustrating existing structures and the proposed
construction, reconstruction, remodeling, alteration or moving and
including the following:
(a)
Property boundary lines and dimensions of the property and any
significant topographic or physical features of the property.
(b)
The location, size, use and arrangement of proposed buildings
and of existing buildings which will remain, if any, including height
in stories and feet, floor area ratio, total floor area, total square
feet of ground area coverage and number and size of dwelling units,
by number of bedrooms.
(c)
Minimum yard dimensions and, where relevant, relation of yard
dimensions to the height of any building or structure.
(d)
The location, dimensions and number of all driveways, entrances,
curb cuts, parking stalls, loading spaces and access aisles and the
total lot coverage of all parking, loading, driveway and aisle areas.
(e)
The location and height of fences or screen plantings and the
type or kind of building materials or plantings to be used for fencing
or screening.
(f)
The location, designation and total area of all usable open
space.
(g)
The location, use and size of structures and other land uses
within 200 feet of the boundaries of the subject property.
(h)
A clear designation of the features of the proposed development
or use which requires a variance and the extent of the variance requested.
(i)
Any other information that may be required to be shown on the
site plan by the Board of Adjustment to determine that the application
is in compliance with the codes and ordinances of the City.
(9)
A statement of the particular requirements of this chapter which
prevent the proposed use or construction.
(10)
A statement of the characteristics of the subject property which
prevent compliance with said requirements of this chapter.
(11)
A statement specifically addressing the provisions of § 163-168B through D of this article relevant to the type of variance sought and expressly setting forth all evidence which exists to show the applicability of those provisions to the requested variance and the compliance of the requested variance with those provisions.
(12)
A statement responding to the general prohibition of § 163-168A of this article, setting forth a list of any and all other applications filed in response to the requirements of that subsection and their status or disposition, as well as a justification for the failure to file any applications which might relieve or respond to the hardship, difficulty or special reason alleged.
(13)
A statement of the minimum variance that would be necessary
to permit development of the subject property.
(14)
Such other and further information and documentation as the
Board of Adjustment may deem necessary or appropriate to a full and
proper consideration and disposition of the particular application.
B.
Review and distribution by Land Use Administrator.
(1)
Upon receipt of an application for a variance, the Land Use
Administrator shall review it for completeness and compliance with
the provisions of this chapter and shall promptly notify the applicant,
in writing, of any deficiency either in the application or the required
fee. Unless the applicant is informed, in writing, by the Land Use
Administrator within 45 days following the actual submission of the
application that it is deficient, the application shall be deemed
complete as of the date it was submitted.
(2)
Upon determining that the application is complete, the Land
Use Administrator shall retain sufficient copies of the application
for his review and files and shall distribute duplicate copies of
the application as follows:
(a)
To the members of the Board of Adjustment.
(b)
To the members of the Planning Board.
(c)
To the City Engineer.
(d)
To the City Tax Assessor.
(e)
To the City Health Officer.
(f)
To the City Fire Protection Subcode Officer.
(g)
To the City Construction Official.
(h)
To such other officials of the City as the Land Use Administrator
shall consider appropriate.
(i)
To such consultants of the City as the Board of Adjustment or
Planning Board may direct.
C.
Review and report by designated officials. The Land Use Administrator and each City official or consultant to which the application has been referred shall file a written report thereon with the Board of Adjustment, setting forth recommendations for changes in the plans as submitted and for conditions on approval, if any, necessary to bring such plan into compliance with any applicable federal, state, county or City law, ordinance, regulation, plan or program or to eliminate any adverse effects of the proposed development on those aspects of the general health, safety and welfare of the community for which such official or consultant has special responsibility. One copy of each report filed pursuant to this subsection shall be filed with the Land Use Administrator and made available to the applicant and other interested persons pursuant to § 163-198J of this chapter.
[Amended 6-15-1988 by Ord. No. 1-1988]
E.
Action by Board of Adjustment.
(1)
Within 120 days following the filing of a complete application for a variance, the Board of Adjustment shall render its decision, in the manner and form specified by § 163-33 of this chapter, either granting the application for a variance, granting it subject to conditions as specified in § 163-171 below, or denying the application.
(2)
The application for a variance shall be denied where the Board of Adjustment finds either that other relief pursuant to this chapter exists to remedy or respond to the hardship, difficulty or special reason and the applicant has not sought relief pursuant thereto; or that granting the requested variance would result in a substantial impairment of the goals and purposes of the Master Plan, the Official Map, the capital improvements plan or this chapter; or that any ground exists pursuant to Part 5 of this chapter for denial of the variance.
[Amended 6-15-1988 by Ord. No. 1-1988]
(4)
The Board of Adjustment shall not grant a use variance pursuant to § 163-168 of this chapter except by the affirmative vote of at least 2/3 of the full authorized membership of the Board.
(5)
The failure of the Board of Adjustment to act within 120 days
or such longer period of time as may be agreed to by the applicant
shall constitute approval of the application.
(6)
Within 10 days following such decision or the expiration of such period without any decision, the Land Use Administrator shall publish notice and mail a certificate of such decision or failure to act to all parties entitled thereto as provided by § 163-200 of this chapter. In the event that a variance is granted, the Land Use Administrator shall list in such certificate any and all conditions imposed by the Board of Adjustment.
F.
Action by applicant. In the event that a variance is granted or granted subject to conditions acceptable to the applicant, the applicant shall, in writing, within 10 days following publication of notice of such decision pursuant to § 163-200 of this chapter, acknowledge the grant of such variance and unconditionally accept and agree to any such conditions. In the event that an application for a variance is denied or is approved subject to conditions which are not acceptable to the applicant or a variance less than requested is granted and is unacceptable to the applicant, the applicant may, within the aforesaid time period, either appeal such decision to a court of competent jurisdiction pursuant to law or appeal such decision pursuant to Part 5, Article XXXI, of this chapter or abandon the application.
G.
Ancillary powers of the Board of Adjustment; simultaneous review
and approval of applications.
(1)
Site plan/subdivision approval and conditional use approval. When reviewing applications for a use variance pursuant to § 163-168C of this chapter, the Board of Adjustment shall have the power to grant, to the same extent and subject to the same provisions, conditions and limitations as applicable to the Planning Board and subject to referral to and recommendation by the Planning Board pursuant to Subsections B, C and D of this section, the following:
(2)
Applications for additional approvals. Whenever, in addition to approval of an application for a use variance pursuant to this article, the applicant will, in connection with the proposed development, require any of the approvals authorized by Subsection G(1) of this section, the applicant shall, prior to filing an application pursuant to this article, request a prehearing conference with the Board of Adjustment pursuant to Part 5, Article XX, or § 163-144 of this chapter, as the case may be, and shall, at the time of filing an application for a use variance, file applications for all other required approvals.
(3)
Notice of applications for additional approvals. Whenever, in
connection with an application for a use variance pursuant to this
article, the applicant files an application for other approvals pursuant
to this section, all required notices shall include reference to the
request for any and all additional approvals.
(4)
Procedures and action by Board of Adjustment. Whenever, in conjunction
with an application for a use variance, an applicant files applications
for other approvals pursuant to this subsection, the Board of Adjustment
shall review and process all such applications at the same public
hearing. In reviewing such combined applications, the Board of Adjustment
shall, except as hereinafter provided with respect to limitations
on the time for taking action, comply with all of the provisions of
this chapter applicable to each of the applications included in the
combined application. Where, pursuant to the ancillary jurisdiction
granted by this subsection, the Board of Adjustment is reviewing an
application subject to the primary jurisdiction of the Planning Board,
all provisions of this chapter applicable to the Planning Board in
reviewing such an application shall be deemed to refer to and to apply
to the Board of Adjustment. The Board of Adjustment shall act on any
such combined application within 120 days after submission of a complete
application or within such further time as may be consented to by
the applicant. Failure of the Board of Adjustment to act within such
period of time shall constitute approval of the application. The Land
Use Administrator shall issue notices and certificates of such action
or failure to act in accordance with the provisions of this chapter
applicable to the various applications involved.
A.
The Board of Adjustment may, in approving the grant of any variance,
impose such restrictions and conditions upon such approval, the proposed
use and the premises to be developed or used pursuant to such approval
as may be necessary to ensure the compatibility of the proposed use
and development with surrounding development; to ensure the compliance
and consistency of the proposed use and development with the standards
of this chapter and the general purposes, goals and objectives of
this chapter, the Master Plan, the capital improvements program and
the Official Map; and to prevent or minimize adverse effects from
the proposed use and development upon other properties in the neighborhood
and upon the general health, safety and welfare of the entire City
to the end that no variance granted pursuant to this article shall
result in a substantial detriment to the public good or a substantial
impairment of the land use plans and policies of the City.
B.
Every variance granted shall be conditioned upon the developer's
continuing compliance with all applicable laws, ordinances and regulations
and all conditions imposed upon such approval.
C.
All conditions imposed upon any variance, except to the extent made applicable to all variances by the express terms of this chapter, shall be expressly set forth in the resolution granting such variance. The violation of any condition upon any such variance shall be a violation of this chapter and grounds for revocation of such variance pursuant to § 163-175 below.
D.
A variance less than or different from that requested may be granted
when the record supports the applicant's right to some relief but
not to the relief requested.
[1]
Editor's Note: Former § 163-172, Filing of affidavit;
fee, was repealed 6-15-1988 by Ord. No. 1-1988.
The grant of variance shall not authorize the establishment
or extension of any use nor the development, construction, reconstruction,
alteration or moving of any building or structure, but shall merely
authorize the preparation, filing and processing of applications for
any permits and approvals which may be required by the codes and ordinances
of the City and other governmental agencies having jurisdiction, including
but not limited to a certificate of land use compliance, a building
permit and a certificate of occupancy.
[Amended 6-15-1988 by Ord. No. 1-1988]
No variance granted pursuant to this chapter shall be valid
for a period longer than one year from the date of issue, unless a
building permit is issued and construction is actually begun within
that period and is thereafter diligently pursued to completion or
an occupancy permit is obtained and a use commenced within that period.
In addition to the other penalties and remedies for violations of this chapter, it shall be a condition of every variance granted pursuant to this article that such variance may be revoked for violation of any condition imposed upon such variance either by the provisions of this chapter or by the provisions of the resolution granting such variance; provided, however, that no such variance shall be revoked except by resolution of the Board of Adjustment, in the form specified by § 163-33 of this chapter, adopted following a public hearing, noticed and conducted by the Board of Adjustment in the same manner as provided for the original granting of the variance, whereat the existence of such violation is established.
