§ 10.5-115. Variances; hearings; grants or denials; appeal.

(a)

Request for variance . If an applicant receives a certification of noncompliance because the location of the proposed adult use is in violation of the locational requirements of this division, then the applicant may, not later than ten (10) calendar days after receiving notice of the certification of noncompliance, file with the division of development services a written request for a variance from the locational restrictions of section 10.5-109 of this division. Filing of such a request shall preserve the pending status of the application for purposes of the review of conflicting applications.

(b)

Hearing scheduled . If the written request is filed with the division of development services within the ten-day limit, the division of development services shall schedule a hearing before the board of adjustment, which body shall consider the request for a variance. The division of development services shall set a date for the hearing within sixty (60) days from the date the written request is received.

(c)

Public hearing and board of adjustment decision . The board of adjustment shall hear and consider evidence offered by any interested person in a public hearing scheduled with public notice. Public notice shall be pursuant to the requirements of state and local law and shall include property owners of record by the property appraiser within four hundred (400) feet of the proposed location. The board of adjustment may, in its discretion, grant a variance, with reasonable conditions, from the locational restrictions of section 10.5-109 of this division if it makes the following findings:

(1)

That a sufficient physical barrier separates the adult use establishment, for which a variance is being sought, from the land use(s) which has caused the adult use not to be in compliance with the distance requirement of this division, so as to substantially fulfill the purpose of the distance requirement. Such physical barriers include, but are not limited to, limited access streets or highways, walls, natural or manmade waterways.

(2)

That the strict application of the provisions of this division will work an undue hardship unique to the applicant for a particular location.

(3)

That all other applicable provisions of this division will be observed.

(d)

Decision by majority vote . The board of adjustment may only grant a variance to the provisions of this division by a majority vote. Failure to reach a majority vote shall result in a denial of the variance. The decision of the board of adjustment may be appealed to the board of county commissioners, if such appeal is filed within seven (7) days of the decision rendered by the zoning board of adjustment. The decision of the board of adjustment shall be rendered at the public hearing.

(e)

Reapplication for exemption following denial . If the board of adjustment denies the exemption, the applicant may not reapply for an exemption until at least one year has elapsed since the date of the board of adjustment's action.

(f)

Effect of exemption from locational restrictions on other provisions herein . The grant of a variance, under this section does not exempt the applicant from any other provisions of this division other than the locational restrictions of section 10.5-109 as conditioned by the board of adjustment.

(g)

Appeal by aggrieved parties . Any aggrieved party may appeal the decision of the board of adjustment to the board of county commissioners within seven (7) days of the board of adjustment's decision. The division of development services shall set the matter before the board of county commissioners for public hearing no more than fifteen (15) days subsequent to filing of the appeal.

(Ord. No. 92-25, § 23, 9-1-92; Ord. No. 01-05, § I, 2-13-01)