In accordance with the provisions of the General Statutes of the State
of Connecticut, the Zoning Board of Appeals shall consist of five electors
who shall not be members of the Planning and Zoning Commission. They shall
be appointed for terms of five years, so arranged that the term of not more
than one member shall expire in any one year.
The Board of Appeals shall elect from its membership a Chairman, Vice
Chairman and Secretary, each to serve for a term of one year and subject to
reelection. The Chairman or, in his absence, the Vice Chairman, shall have
power to administer oaths and compel the attendance of witnesses.
The Board shall adopt such rules, regulations and procedures as may
be deemed necessary to carry into effect the provisions of these regulations.
These shall include, among other things, regulations relating to notices for
public hearings, fees to be charged for all applications filed with the Board,
forms to be used in the submission of applications, times when hearings shall
be held, procedures for the conduct of public hearings, regulations regarding
notices for public hearings and the form of written report of findings of
the Board.
The Board shall meet at the call of the Chairman and at such other times
as the Board may determine. All meetings of the Board of Appeals shall be
open to the public. Records of the Board may be examined in the offices of
the Board at any reasonable time.
The Board shall keep minutes of its proceedings, recording the action
of the Board and the vote of each member upon each action or, if absent or
failing to vote, indicating such fact. It shall also keep records of its examinations
and other official action, all of which shall be filed promptly in the office
of the Board and shall be open to public examination. All findings and actions
of the Board shall be in writing and shall set forth the reasons for the action
taken, whether to be in favor of the granting of an application or petition.
Findings shall be complete, detailed and in specific terms, setting forth
the reasons for the decision, and shall go beyond such generalities as "in
the interest of public health, safety and the general welfare... ." In every
instance, a statement of the hardship upon which such action is based shall
appear in the minutes.
The Board may call upon any other city department or agency for assistance
in the performance of its duties, and it shall be the duty of such other departments
or agencies to render such assistance to the Board as may be reasonably required.
The Zoning Officer or Building Official's advisory opinion on any matter
before the Zoning Board of Appeals shall be sent to the Board at least four
days prior to the public hearing assigned for such matter, and such findings
of the Zoning Officer or Building Official shall be read into the record at
such public hearing. The failure of the Zoning Officer or Building Official
to submit its report to the Zoning Board of Appeals prior to the public hearing
shall not prevent the Zoning Board of Appeals from reaching a decision on
any matter before it.
A. Every variance granted by the Zoning Board of Appeals
shall be based upon and accompanied by a specific finding or findings, supported
by evidence produced at a public hearing in the manner provided by law, to
the effect that the exceptional circumstances of the particular case are such
as to constitute exceptional difficulties or unusual hardship in the way of
carrying out the strict application of the regulations of this chapter.
B. Every variance granted by the Zoning Board of Appeals
shall be designed by the Board to safeguard the public health, safety, convenience
and welfare and shall be further designed to provide reasonable consideration
among other things to the character of the neighborhood or district, the conservation
of property values, the direction of building development in accordance with
any plan of development or portion thereof which has been adopted by the Commission;
and shall not involve substantial detriment to the public good nor substantially
impair the intent and purpose of the zone plan of this chapter, to the end
that the spirit of this chapter shall be observed, public safety ensured and
substantial justice done.
C. Every variance granted by the Zoning Board of Appeals
shall, in appropriate cases, be made subject to such conditions and safeguards
as the Board shall deem to be applicable to the particular case.
D. Any variance granted by the Zoning Board of Appeals pursuant
to the provisions of this article, shall be construed to be a nonconforming
use.
The Zoning Board of Appeals shall have the following powers:
A. Appeals. To hear and decide appeals made by any person
or persons severally or jointly aggrieved by any order, requirement or decision
of an administrative official in the enforcement of these regulations. The
Board may reverse or affirm, wholly or partly, or may modify the order, requirement
or decision appealed from, and shall make such order, requirement or decision
as in its opinion ought to be made in the premises and shall have the powers
of the officer from whose order, requirements or decision the appeal was taken,
provided that the affirmative vote of four members shall be necessary to reverse
or modify the order, requirement or decision appealed from.
B. Variances. Grant variances from the strict application
of these regulations when, by reason of exceptional narrowness, shallowness,
shape or substandard size of specific parcels of property, the strict application
of these regulations or amendments thereto would result in unusual difficulty
or unreasonable hardship upon the owner of said property; provided that such
relief or variance can be granted without substantial impairment of the intent,
purpose and integrity of these regulations. Uses not permitted as of right
in any particular zoning district shall not be permitted in that particular
zoning district by variance. Before granting a variance on the basis of unusual
difficulty or unreasonable hardship, there must be a finding by the Board
of Appeals that all of the following conditions exist:
(1) That if the owner complied with the provisions of these
regulations, he would not be able to make any reasonable use of his property.
(2) That the difficulties or hardship are peculiar to the
property in question, in contrast with those of other properties in the same
district.
(3) That the hardship was not the result of the applicant's
own action.
(4) That the hardship is not merely financial or pecuniary.
C. Specific types of variances. In conformity with its general
power to grant variances as provided in this article, and pursuant to the
guiding principles stated in this article, the Zoning Board of Appeals is
hereby specifically empowered:
(1) To grant a building permit, in appropriate cases, where
the lot of the appellant, as such lot existed at the time of the effective
date of this chapter, lies across the boundary of two districts, that a building
permit be granted for the extension into the more restricted district of a
lawful conforming use permitted in the less restricted district, but for a
distance not exceeding 35 feet measured at right angles to such district boundary.
(2) To grant a building permit for the enlargement or extension
of a nonconforming use or building to any portion of the lot occupied by such
use or building at the effective date of the chapter, which portion was arranged,
intended or designed for such nonconforming use at the date of this chapter;
provided that such enlargement or extension shall not exceed in all 50% of
the appraised value of such use or existing building at the effective date
of this chapter.
(3) To grant a building permit for the reconstruction, structural
alteration, restoration or repair of a structure used for a nonconforming
use, to an extent exceeding in aggregate 50% of the replacement cost of such
structure.
(4) To grant a certificate of occupancy for a change in nonconforming
use, provided that the Planning and Zoning Commission shall have made a determination
that such change will be beneficial to the general neighborhood and further
provided that such change be made subject to such reasonable conditions and
safeguards as the Board may stipulate.
(5) To modify the side yard requirement on the side street
of a corner lot, in cases where such requirement would unduly reduce the buildable
width of such corner lot.
(6) To grant a temporary building permit for a period not
to exceed one year for a nonconforming building, structure or use incidental
to a building or other construction project, including such uses as the storage
of building supplies and machinery, and a real estate office located on a
tract of land where individual properties are being offered for sale; provided
that such temporary permit shall be issued only upon written agreement by
the owner or his agent to remove such building or structure upon expiration
of such permit; and further provided that such permit shall be subject to
such reasonable conditions as the Board shall determine to be necessary to
protect the public health, safety and welfare. Such permit may be renewed
annually, at the discretion of the Board, over a period not to exceed three
years.
D. Floodplain District.
(1) When considering a variance from the provisions of Article
XV, Floodplain Management Controls, the Board shall take into consideration
the following:
(a) The variance shall not increase flood heights during
flood discharge, create additional threats to the public safety or result
in extraordinary public expense or nuisance;
(b) The variance is the minimum necessary in relation to
flood hazard to afford the relief requested; and
(c) The variance may be granted for new construction or improvement
of structures or buildings on lots of 1/2 acre or less when such lots
are contiguous to and surrounded by lots with existing structures or buildings
constructed below base flood level.
(2) In granting a variance to permit construction of a building
or other structure below the water surface elevation of a flood having a one-percent
chance of being equaled or exceeded in any given year, the Board shall notify
the applicant, in writing, that such variance will result in increased premium
rates for flood insurance up to amounts as high as $25 for $100 of insurance
coverage and that such construction increases risk to life and property.
Every application for a variance or for an interpretation of a ruling
of the Zoning Officer or Building Official shall be made on a form approved
by the Board of Appeals, providing space showing the ownership of the property
involved, the dimensions of the property and the reasons for the application.
Said application shall also be filed with the Board of Appeals and shall also
include a statement by the applicant of the reasons for the application.
The Board of Appeals shall fix a reasonable time for the hearing of
the appeal. At such hearing, any party may appear in person and may be represented
by agent or attorney. Upon filing an application to overrule the action of
the Zoning Officer or Building Official, or the filing of an application for
a variance upon forms to be provided by the Board of Appeals, a date shall
be set for a public hearing, and due notice thereof shall be given to the
parties. Notice of the time and place of such hearing shall be published in
a newspaper having substantial circulation in the City of Derby at least twice,
at intervals of not less than 10 days; the first not more than 15 days, nor
less than 10 days, and the last not less than two days before such hearing.
Notice shall be sent by the applicant, by certified return receipt mail, to
the owners of record of all property within 150 feet of the subject property.
Evidence of such mailing shall be submitted to the Board prior to or at the
public hearing. Whenever the Zoning Board of Appeals has before it for consideration
an application for a variance in the use of property, any portion of which
lies within 500 feet of a contiguous municipality, such Board shall, at least
one week prior to the hearing thereon, notify the Clerk of such municipality,
in writing, of the fact of such application and of the date fixed by it for
such hearing.
The Board of Appeals shall render its decision on such an appeal within
65 days after the hearing. The Board of Appeals may reverse or affirm, wholly
or in part, or may modify the order, requirement, decision or determination
as in its opinion ought to be made in the premises, and to that end shall
have all the powers of the officer from whom the appeal is taken. Decisions
of the Board shall take effect when rendered, provided that a copy thereof
shall be filed in the office of the Town Clerk. Any person who appeals to
the Board shall be notified of the Board's decision on his appeal by certified
mail within three days after such decision is rendered. Notice of the decision
of the Board shall be published in a newspaper having a substantial circulation
in the City of Derby within 10 days after such decision has been rendered.