A.
Area variance. The Zoning Board of Appeals has the power to grant
variances from the area or dimensional requirements of this chapter.
In making its determination, the Zoning Board of Appeals shall take
into consideration the benefit to the applicant if the variance is
granted as weighed against the detriment to the health, safety or
welfare of the neighborhood or community of such grant. The Board
shall also consider:
(1)
Whether an undesirable change will be produced in the character
of the neighborhood or a detriment to nearby properties will be created
by the granting of the area variance;
(2)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
(3)
Whether the requested area variance is substantial;
(4)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
(5)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board of Appeals, but shall
not necessarily preclude the granting of the area variance.
B.
Use variances. The Zoning Board of Appeals has the power to grant
use variances, authorizing a use of the land which otherwise would
not be allowed or would be prohibited by the terms of the chapter.
No such use variance shall be granted by the Zoning Board of Appeals
without a showing by the applicant that applicable zoning regulations
and restrictions have caused unnecessary hardship. In order to prove
such unnecessary hardship, the applicant shall demonstrate to the
Board of Appeals that for each and every permitted use under the zoning
regulations for the particular district where the property is located:
(1)
That the applicant cannot realize a reasonable return, provided
that lack of return is substantial as demonstrated by competent financial
evidence;
(2)
That the alleged hardship relating to the property in question
is unique, and does not apply to a substantial portion of the district
or neighborhood;
(3)
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
(4)
That the alleged hardship has not been self-created. The Board
of Appeals, in the granting of use variances, shall grant the minimum
variance that it shall deem necessary and adequate to address the
unnecessary hardship proven by the applicant, and at the same time
preserve and protect the character of the neighborhood and the health,
safety and welfare of the community.
C.
Appeals. Applicants, or any officer, department, board or bureau
of the Town, have the right to appeal to the Zoning Board of Appeals
any order, requirement, decision, interpretation or determination
of officials charged with the enforcement of this chapter. The Zoning
Board of Appeals may reverse or affirm, wholly or partly, or modify
the order, requirement, decision, interpretation or determination
being appealed and shall make such order, requirement, decision, interpretation
or determination as, in its opinion, ought to have been made in the
matter by the Code Enforcement Officer, and to that end shall assume
all the powers of the administrative official from whose order, requirement,
decision or determination the appeal is taken.
A.
Applications shall be in writing and must be filed with the Zoning
Board of Appeals within 60 days after the order, requirement, decision,
interpretation, or determination that is being appealed. Such application
shall refer to the specific provisions of this chapter involved and
shall specify the grounds for the variance requested, the interpretation
claimed, or the reversal of an order, requirement, decision, or determination
of an administrative official and the relief sought.
B.
The applicant shall supply the Zoning Board of Appeals with:
A.
The Zoning Board of Appeals shall set a date for a hearing within
a reasonable time upon receipt of a complete application of a variance
or an appeal.
B.
The Zoning Board of Appeals shall advertise notice of the hearing as set forth in Article XIII, Administrative Provisions. The cost of sending or publishing any notices relating to such variance or appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and paid prior to the hearing of such appeal.
C.
The Secretary of the Zoning Board of Appeals may transmit to the
Planning Board a copy of all variance applications and appeals which
require a public hearing, together with a copy of the notice of the
public hearing, within seven days of setting the date for the hearing.
D.
The Planning Board may submit an advisory opinion on any application
or appeal. Applicants seeking relief from the Zoning Board of Appeals
are welcome, but not required, to attend the meeting of the Planning
Board at which their application is reviewed. The Planning Board's
advisory opinion shall be delivered prior to the close of the Zoning
Board's public hearing. The Planning Board shall be deemed to have
no opinion, positive or negative, on any application or appeal, if
no opinion is received prior to the close of the public hearing. Failure
to receive an opinion from the Planning Board shall not delay the
Zoning Board of Appeals' review of any application or appeal.
E.
The Zoning Board of Appeals shall decide upon the appeal within 62
days after such hearing. The time within which the Zoning Board of
Appeals must render its decision may be extended by mutual consent
of the applicant and the Zoning Board of Appeals.
F.
The Zoning Board of Appeals may reverse or affirm, wholly or in part,
or may modify any order, requirement, decision, interpretation, or
determination made by officials charged with the enforcement of this
chapter. The concurring vote of a majority of the members of the Zoning
Board of Appeals shall be necessary to reverse any order, requirement,
decision or determination of any such administrative official, or
to grant a use variance or area variance.
The Zoning Board of Appeals shall have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed variance. Such conditions shall
be consistent with the spirit and intent of the chapter and shall
be imposed for the purpose of minimizing any adverse impact such variance
may have on the neighborhood or community, and may be placed on use
or area variances.
A motion for the Zoning Board of Appeals to hold a rehearing
to review any order, decision or determination of the Zoning Board
of Appeals not previously reheard may be made by any member of the
Zoning Board of Appeals. A unanimous vote of all members of the Zoning
Board of Appeals then present is required for such rehearing to occur.
Such rehearing is subject to the same notice provisions as an original
hearing. Upon such rehearing the Zoning Board of Appeals may reverse,
modify or annul its original order, decision or determination upon
the unanimous vote of all members then present, provided the Zoning
Board of Appeals finds that the rights of persons acting in good faith
in reliance upon the reheard order, decision or determination will
not be prejudiced thereby.
An appeal shall stay all proceedings in furtherance of the action
appealed from, unless the administrative official charged with the
enforcement of this chapter, from whom the appeal is taken, certifies
to the Zoning Board of Appeals, after the notice of appeal is filed,
that, by reason of facts stated in the certificate, a stay would,
in his or her opinion, cause imminent peril to life or property, in
which case proceedings shall not be stayed other than by a restraining
order which may be granted by the Zoning Board of Appeals or by a
court with jurisdiction on application, with notice to the administrative
official from whom the appeal is taken, and for due cause shown.
Unless otherwise specified by the Zoning Board of Appeals and
without any further hearing by the Zoning Board of Appeals, a decision
on any appeal, including the granting of area and use variances, shall
automatically lapse and expire if the applicant fails to exercise
the variance, fails to obtain any necessary building permits, or if
the use is discontinued within one year of the date on which the decision
is filed. Prior to such expiration, an applicant may seek a one-year
extension of the variance from the Zoning Board of Appeals, who shall
grant such extension if, in consultation with the Code Enforcement
Officer, there have been no material changes in the circumstances
surrounding the application.
