Zoning board of review procedures for variances, special use permits and special permits
(a) Filing procedure. An application, together with all required submission items and data set forth in subsection (d) of this section, for a variance, special permit or a special use permit shall be filed with the department of planning and development. Applications may be made by any person, group, agency or corporation in accordance with the definition of applicant set forth in section 21-22. The department of planning and development shall immediately transmit a copy of each application to the planning commission.
(b) Request for findings and recommendations from planning commission. For any variance, special use permit, or special permit pertaining to a commercial or mixed use project, the planning commission shall report its recommendations. For all other applications, the staff may report findings or recommendations, but at the request of the planning director or the zoning board of review, staff shall report findings or recommendations of the planning commission. All findings and recommendations shall include a statement on the general consistency of the application with the goals and purposes of the comprehensive plan. The planning commission and/or staff shall render such findings and recommendations to the zoning board of review within 30 days of receipt of the application from the zoning board of review.
(c) Public hearing and notice requirements. The zoning board of review shall hold a public hearing on any application for a variance, special use permit and special permit, in an expeditious manner, after receipt, in proper form, of the application and all required submission items and data. The zoning board of review shall give notice of the public hearing at least 14 days prior to the date of the hearing in a newspaper of general circulation in the town. Notice of the hearing shall be sent first class mail to the applicant, and to at least all those who require notice under subsection 21-19(c). The notice shall include the street address of the subject property. The cost of notification shall be borne by the applicant.
(d) Application procedures. The zoning board of review shall prepare and adopt rules of procedure. The board's rules of procedure shall, at a minimum, include application forms for each type of relief sought.
(e) Decisions and records. Following a public hearing, the zoning board of review shall render a decision within a reasonable period of time. The zoning board of review shall include in its decision all findings of fact and conditions, showing the vote of each member participating thereon, and the absence of a member or a member's failure to vote. Decisions shall be recorded and filed in office of the town clerk within 30 working days from the date when the decision was rendered and shall be a public record. The zoning board of review shall keep written minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote indicating such fact, and shall keep records of its examinations, findings of fact and other official actions, all of which shall be recorded and filed in the office of the town clerk in an expeditious manner upon completion of the proceeding. For any proceeding in which the right of appeal lies to the superior court or supreme court, the zoning board of review shall have the minutes taken either by a competent stenographer or recorded by a sound recording device. Any decision by the zoning board of review, including any special conditions attached thereto, shall be mailed to the applicant and/or property owner, to the zoning enforcement officer, and to the associate director of the division of planning of the state department of administration. Any decision evidencing the granting of a variance, modification, special use permit, special permit or special exception shall also be recorded in the town's land evidence records and the cost of such recording shall be paid by the applicant. The decision shall be posted in a location visible to the public in the town hall for a period of 20 days following the recording of the decision.
(f) Special conditions. In granting a variance, special permit or special use permit or in making any determination upon which it is required to pass after a public hearing under this chapter, the zoning board of review or other zoning enforcement agency may apply such special conditions that may, in the opinion of the board or agency, be required to promote the intent and purposes of the comprehensive plan and this chapter. Failure to abide by any special conditions attached to a grant shall constitute a zoning violation. Those special conditions shall be based on competent credible evidence on the record, shall be incorporated into the decision, and may include but are not limited to provisions for the following:
(1) Minimizing adverse impact of the development upon other land, including the type, intensity, design and performance of activities;
(2) Controlling the sequence of development, including when it must be commenced and completed;
(3) Controlling the duration of the use or development and the time within which any temporary structure must be removed;
(4) Ensuring satisfactory installation and maintenance of required public improvements;
(5) Designating the exact location and nature of development; and
(6) Establishing detailed records by submission of drawings, maps, plats or specifications.
(g) Appeals of decisions. Procedures for appeals of zoning board of review decisions are as follows:
(1) An aggrieved party may appeal a decision of the zoning board of review on an application for a variance, special permit or special use permit to the county superior court by filing a complaint setting forth the reasons of appeal within 20 days after the decision has been recorded and posted in the office of the town clerk. The zoning board of review shall file the original documents acted upon by it and constituting the record of the case appealed from or certified copies thereof, together with such other facts as may be pertinent, with the clerk of the court within 30 days after being served with a copy of the complaint. When the complaint is filed by someone other than the original applicant or appellant, the original applicant or appellant and the members of the zoning board of review shall be made parties to the proceedings. The appeal shall not stay proceedings upon the decision appealed from, but the court may, in its discretion, grant a stay on appropriate terms and make such other orders as it deems necessary for an equitable disposition of the appeal.
(2) If, before the date set for hearing in the superior court, an application is made to the court for leave to present additional evidence before the zoning board of review and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for the failure to present it at the hearing before the zoning board of review, the court may order that the additional evidence be taken before the zoning board of review upon conditions determined by the court. The zoning board of review may modify its findings and decision because of the additional evidence and shall file that evidence and any new findings or decisions with the superior court.
(3) The review shall be conducted by the superior court without a jury. The court shall consider the record of the hearing before the zoning board of review and, if it shall appear to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal to present that evidence in open court, which evidence, along with the report, shall constitute the record upon which the determination of the court shall be made.
(4) The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on the questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of the following findings, inferences, conclusions or decisions:
a. In violation of constitutional, statutory or ordinance provisions;
b. In excess of the authority granted to the zoning board of review by statute or ordinance;
c. Made upon unlawful procedure;
d. Affected by other error of law;
e. Clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; and
f. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(5) Upon the entry of any case or proceedings brought under this section, including pending appeals and appeals taken to the court, the court shall, at the request of either party, advance the case, so that the matter shall be afforded precedence on the calendar and shall thereupon be heard with as little delay as possible.
(h) Expiration of variance, special permit, and special use permit. A variance, special permit, or special use permit granted pursuant to this chapter shall be valid for a period of one year from the date of the filing of the decision of the zoning board of review and the receipt of all required local and state approvals which have been granted, during which time a building permit must be applied for. The zoning board of review may grant additional time as a condition of approval. Unless otherwise specified by the zoning board of review, the project for which a variance, special permit or special use permit is granted must be completed within two years from the date of the filing of the decision of the zoning board of review and the receipt of all required local and state approvals have been granted. Under no circumstances shall a variance, special permit, or special use permit be valid for a period longer than three years from the date of the filing of the decision of the zoning board of review.
In the event that an applicant is unable to exercise the permission granted or apply for a building permit within one year from the date of the granting of the special use permit or variance, then said applicant may apply for an extension of time with the zoning board of review; provided, however, that said application for extension of time, for cause, is submitted at least 30 days prior to the expiration date of the special use permit or variance. The zoning board of review may grant only one extension of time for an application for a period not exceeding one year from the expiration date of the special use permit or variance. The granting of such an extension is entirely within the discretion of the zoning board of review and the zoning board of review may require that an applicant demonstrate through testimony or other evidence that cause exists, that the effect of the special use permit or variance on neighboring properties has not substantially changed since the original application and that the granting of the extension of time would not be inimical to the health, safety and welfare of the public generally.
Written notice of such application for extension shall be sent, at the applicant's expense, to all remonstrants of record as determined by the record of the original hearing on the original petition for a special use permit or variance. No other notice shall be required.
(i) Reapplication. If a variance, special permit or special use permit has been denied, a new application for the same request as was denied may not be made for a period of one year from the date of the recording of the decision unless substantially new evidence can be provided to the zoning board of review.
(Ord. No. 94-12, § 1, 6-27-1994; Ord. No. 01-1, § 3, 2-12-2001; Ord. No. 07-02, § 1, 2-5-2007; Ord. No. 07-12, § 1, 6-11-2007; Ord. No. 08-10, § 1, 6-9-2008; Ord. No. 12-13, § 1, 10-22-2012; Ord. No. 18-22, § 1, 10-29-2018)