A. If a buffer plan is denied, the applicant shall first request reconsideration by the Director. Failure to request reconsideration within thirty (30) days shall be deemed a waiver of the appeal process. Such request shall be in writing and shall state with specificity why the buffer plan has been incorrectly denied. In reconsideration, the Director shall determine whether the code was incorrectly interpreted in evaluating the buffer plan and shall also have the authority to grant variances to the code if:
1. The development has had buffer(s) applied in conformance with previously issued requirements.
2. The development has slopes or special geological conditions, such as bluffs or rock outcroppings, or existing structures, or the development will provide mitigation, in which case the middle and outer zone widths may be reduced at some points so long as the average width of the buffer throughout the development meets the minimum requirement and the stream side zone is not reduced.
B. Appeals to the Board of Adjustment may be made by any person aggrieved or affected by any decision of the Director of Water Pollution Control. Such appeal shall be made within a reasonable time as provided by the rules of the Board by filing with the Director of Water Pollution Control a notice of appeal specifying the grounds thereof. The Director of Water Pollution Control to whom the appeal is submitted shall forthwith transmit to the Board all the papers constituting the record of the action appealed. An appeal stays all proceedings in furtherance of the action appealed from unless the Director of Water Pollution Control, from whom the appeal is taken, certifies to the Board of Adjustment that after the notice of appeal shall have been filed, a stay would cause immediate peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order that may be granted by the Board of Adjustment or a court of jurisdiction on application and notice to the Director of Water Pollution Control and due cause is shown.
C. The Board of Adjustment shall fix a time for the hearing of the appeal within thirty days following its receipt, give public notice thereof by publication one time in a newspaper of local circulation in Independence not less than five (5) and not more than fifteen (15) days prior to the date of said hearing, and decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or by attorney.
D. The Board of Adjustment as created by the Charter of the City of Independence shall take action only in reference to a specific development when it has determined that a Buffer Plan has been incorrectly denied, or when it has determined that this Article has been incorrectly interpreted, or when the appellant proves undue and unnecessary hardship due to a provision or provisions herein contained as applied to a specific development. Upon determination of incorrect action by the Director of Water Pollution Control or of undue or unnecessary hardship, the Board may issue a variance signed by the chairman. A copy of the variance shall be sent to the Director of Water Pollution Control, who shall approve the Buffer Plan, including the terms of the variance. In no case shall the Board of Adjustment issue a variance reducing the required width of the stream buffer to less than an average of eighty-five feet (85') or seventy-five percent (75%) of the total required buffer on each side of the stream beginning at the stream bank. The stream side zone shall not be reduced in width. The Board of Adjustment must make findings based on evidence presented to it in each specific case that:
1. The property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in this Article; and
2. The plight of the owner is due to unique circumstances.
E. For purposes of implementing the above rules, the Board shall, in making its determination as to whether there are practical difficulties or particular hardships, take into consideration the extent to which the following facts favorable to the applicant have been established by the evidence:
1. The particular physical surroundings, shape, or topographical condition of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations were carried out;
2. The conditions on which the petition for a variance is based would not be applicable, generally, to other developments;
3. The purpose of the variance is not based exclusively upon a desire to make more money out of theproperty;
4. The alleged difficulty or hardship has not been created by any person presently having an interest in the property; and
5. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
F. The Board of Adjustment may impose such conditions and restrictions upon the development benefited by a variance as may be necessary to comply with the standards set out in this section, to reduce or minimize the injurious effect of such variance upon other property in the neighborhood, and to better carry out the general intent of this Article.
Conflict With Other Regulations
Where the standards and management requirements of this Article are in conflict with other laws, regulations, and policies regarding streams, steep slopes, erodible soils, wetlands, floodplains, timber harvesting, land disturbance activities, or other environmental protective measures, the more restrictive shall apply. Nothing contained in this Article shall be taken to either increase, decrease or alter the methods of calculating density under Chapter 14 of this City Code.
A Clear Commitment to