ARTICLE VI

SECTION 25.25 ZONING BOARD OF APPEALS

A. Members

In accordance with the provisions of the General Statutes of the State of Connecticut, the Zoning Board of Appeals shall consist of 5 electors who shall not be members of the Planning and Zoning Commission. They shall be appointed for terms of 5 years, so arranged that the term of not more than one member shall expire in any one year.

B. Officers

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 re-election. The chairman or, in his absence, the vice-chairman, shall have power to administer oaths and compel the attendance of witnesses.

C. Rules of Procedure

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.

D. Meetings

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.

E. Minutes and Findings

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.

F. Assistance from Other Officials

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.

G. Referrals

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.

H. Guiding Principles

1. 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.

2. 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 insured, and substantial justice done.

3. 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.

4. Any variance granted by the zoning board of appeals pursuant to the provisions of this section, shall be construed to be a nonconforming use.

I. Powers of the Board

The Zoning Board of Appeals shall have the following powers:

1. 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 the affirmative vote of four members shall be necessary to reverse or modify the order, requirement, or decision appealed from.

2. 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:

a. That if the owner complied with the provisions of these regulations, he would not be able to make any reasonable use of his property.

b. That the difficulties or hardship are peculiar to the property in question, in contrast with those of other properties in the same district.

c. That the hardship was not the result of the applicant’s own action.

d. That the hardship is not merely financial or pecuniary.

3. Specific Types of Variances: In conformity with its general power to grant variances as provided in this section, and pursuant to the guiding principles stated in this section, the zoning board of appeals is hereby specifically empowered:

a. 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 thirty-five feet measured at right angles to such district boundary.

b. 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 fifty percent of the appraised value of such use or existing building at the effective date of this chapter.

c. 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 fifty percent of the replacement cost of such structure.

d. To grant a certificate of occupancy for a change in nonconforming use, provided that the Planning & 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.

e. 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.

f. 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.

4. Flood Plain District. When considering a variance from the provisions of Section 25.28 Flood Plain Management Controls, the Board shall take into consideration the following:

1.) 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;

2.) the variance is the minimum necessary in relation to flood hazard to afford the relief requested; and

3.) variance may be granted for new construction or improvement of structures or buildings on lots of one-half acre or less when such lots are contiguous to and surrounded by lots with existing structures or buildings constructed below base flood level.

In granting a variance to permit construction of a building or other structure below the water surface elevation of a flood having a 1% 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 rate 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.

J. Applications: 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.

K. Hearings: 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 ten days; the first not more than fifteen days, not less than ten 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.

L. Decision of the Board

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 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 ten days after such decision has been rendered.