Certain circumstances exist or arise wherein an unnecessary
hardship is created through strict adherence to the provisions of
these regulations. There is hereinafter provided provisions for the
granting of a variance from the provisions of these regulations, so
that the public welfare is secured and substantial justice can be
done to those so affected. Application procedures for a variance follow:
(1)
Application for a variance may be filed by any property owner or
their designated agent for the affected property.
(2)
Such application shall be made on a form provided by the office of
the Zoning Administrator. Multiple requests for variance for the same
project may be filed on a single application and charged a single
fee.
(3)
The completed application and fee as set by the City Council shall
be submitted to the Zoning Administrator.
(4)
The application must be complete and received with the required fee
in the office of the Zoning Administrator at least 30 days prior to
the next regularly scheduled meeting of the Board of Adjustment.
(5)
No part of any such fee shall be refundable after an application
is filed and such fee paid, except under petition by the applicant
and approval by the Zoning Administrator. No fee paid for an action
which is declared closed or ruled invalid shall be refunded.
(Ord. 1677, 7-19-2010)
(1)
Notice of the hearing shall be placed in a newspaper of general circulation
in the community at least 15 days prior to the date of the hearing.
(2)
Written notice shall be mailed to all property owners within 150
feet of the subject property at least 15 days prior to the said hearing.
(Where the subject property abuts a public right-of-way, the 150 foot
measurement shall be in addition to this right-of-way along the abutting
side.)
(3)
The Zoning Administrator shall transmit any appeal with all supporting
materials to the Board of Adjustment within 3 days of the scheduled
public hearing.
(4)
Before any variance can be granted, the Board shall make findings
of fact based upon evidence produced at a public hearing setting forth
and showing that the following circumstances exist:
(a)
In considering all proposed variances to this Zoning Ordinance, the
Board shall, before making any findings in a specified case, first
determine that the proposed variance will not amount to a change in
the use of the property to a use which is not permitted within the
district;
(b)
That special conditions and circumstances exist which are peculiar
to the land such as size, shape, topography or location, not applicable
to other lands in the same district and that literal interpretation
of the provision of this Zoning Ordinance would deprive the property
owner of rights commonly enjoyed by other properties similarly situated
in the same district under the terms of this ordinance;
(c)
That the special conditions and circumstances do not result from
the actions of the applicant;
(d)
That granting the variance requested will not confer a special privilege
to the subject property that is denied other lands in the same district;
(e)
That granting the variance will not be materially detrimental to
the public welfare or injurious to the property or improvements in
the vicinity and zone in which subject property is situated;
(f)
The Board of Adjustment shall further make a finding that the reasons
set forth in the application justify the granting of the variance
and that the variance is the minimum variance that will make possible
the reasonable use of the land;
(g)
The Board of Adjustment shall further make a finding that the granting
of the variance will be in harmony with the general purpose and intent
of this Zoning Ordinance and will not be injurious to the neighborhood
or otherwise detrimental to the public welfare; and
(h)
The fact that property may be utilized more profitably will not be
the sole element of consideration before the Board of Adjustment.
(5)
Every decision of the Board of Adjustment shall be made by motion
and shall be based upon "Findings of Fact" and every finding
of fact shall be supported in the record of its proceedings. The enumerated
conditions required to grant a variance under these regulations shall
be construed as limitation on the power of the Board to act.
(6)
In approving a variance, the Board may impose such conditions as
are in its judgment necessary to promote the general provisions of
these regulations.
(7)
It shall take the affirmative vote of 4 members of the Board to grant
a variance.
(8)
A hearing may be continued at the request of the applicant or upon
motion of the Board; provided however, that the granting of the continuance
is a matter of grace, resting solely in the discretion of the Board,
and a refusal to continue is not a denial of a right, conditional
or otherwise.
(9)
Decision on continuance of a hearing can be reached by a simple majority;
but must be made prior to voting on the application itself.
(10)
A variance shall be valid indefinitely, provided it is exercised
within one year of the date of issuance, or as otherwise provided
for by the Board of Adjustment.
(Ord. 1677, 7-19-2010)
(1)
A request may be re-heard only when there has been a manifest error
affecting the Board's decision; or it appears that a substantial
change in facts, evidence or conditions has occurred. Such determinations
shall be made by the Zoning Administrator within 60 days of final
action by the Board.
(2)
Any person aggrieved by any decision of the Board of Adjustment may
present to a court of record a petition, duly verified, setting forth
that such decision is illegal, in whole or part, specifying the grounds
of illegality. Such petition shall be presented to the court within
30 days after the filing of decision in the office of the Board of
Adjustment. Appeals from the Board of Adjustment to a court of record
are governed by Section 76-2-327 MCA.
(Ord. 1677, 7-19-2010)
