Requesting a Variance

How To Request A Variance or Interpretation From The Board of Zoning Appeals

Any property owner who has been denied a building permit or certificate of occupancy by the City of Gardner, Codes Administrator or Building Inspector has the right to appeal to the Board of Zoning Appeals.  In order to proceed with his project, the property owner may appeal to the BOZA for one of the following:

A request for a variance must meet all of the following conditions:

• That the variance requested arises from such conditions which are unique to the property in question and which are not ordinarily found in the same zone or district; and are not created by an action or actions of the property owner or applicant.
• That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.
• That the strict application of the provisions of the Zoning Ordinance, of which the variance is requested, will constitute an unnecessary hardship upon the property owner represented in the application.
• That the variance desired will not adversely affect the health, safety, morals, order, convenience, prosperity, or general welfare of the public.
• That granting of the variance desired will not be opposed to the general spirit and intent of the Zoning Ordinance.

• INTERPRETATION - When the zoning ordinance is not clear on some matter, such as to the appropriate use group by which to place a use not listed in the ordinance, or the location of a zoning district boundary, an appeal may be made to the BOZA for an interpretation of the ordinance.

• APPEAL OF ADMINISTRATIVE DETERMINATION OR DECISION - Whenever someone, who is affected by an administrative determination or decision, believes that action to be in error, an appeal must be made within thirty (30) days of the action in question.

• EXCEPTION FROM THE ZONING ORDINANCE - The BOZA may grant an exception, that is specifically authorized by the zoning ordinance, for an applicant to use their property in a manner contrary to the provisions of the zoning ordinance and amendments thereto.  (Provided such use sub serves the general welfare and protects community interest.)

HOW TO FILE AN APPLICATION

If you wish to file an application with the Gardner Board of Zoning Appeals for one of the above listed reasons, use the following procedure:

a.  The legal description of the affected property, available from the County Clerk’s Office.

b.  A plot plan, drawn to scale, showing the effected property including all existing and proposed improvements.

c.  If you do not own the property in question, bring a letter from the property owner authorizing you to act on his/her behalf.

A member of the City staff will review your request with you and advise you of other information required or procedures to be followed.  You will also be given an application form for an appeal, exception, or variance.

When submitted for consideration, a member of the City staff will review materials to make sure all necessary items have been furnished.  Your request will be scheduled for the next available Board of Zoning Appeals hearing date.

An application is required to be filed with the Community Development Department a minimum of thirty (30) days prior to when a request is to be heard by the Board of Zoning appeals.  A public hearing is required to be held on all requests.  Notice of the time, place, and subject of such hearing shall be published at least once (1) in the official City newspaper (The Gardner News) by the City, a minimum of twenty (20) days prior to the date fixed for the public hearing.  A copy of the notice shall be mailed by the City to the party’s involved and the BOZA within seven (7) days of publication.  A fee of $100 is required with each application.  Each individual request requires a separate application and fee submittal.

Before twenty (20) days from the date of the hearing set for the variance or exception, the applicant is required to mail a copy of the application specifying the request, the legal description, and a map showing the location of the subject property to the owners of record of all real property located within or outside the corporate limits of the City and lying within two hundred feet (200’) of the boundaries of the property which is the subject of the variance or exception being requested.  The notice is required to be mailed certified mail, return receipt and proof of the mailing and the return receipts are required to be filed with the Secretary of the BOZA a minimum of five (5) days prior to the scheduled hearing date.

The applicant is required to file with the secretary of the BOZA on or before twenty (20) days prior to the date the hearing is set, a plat of the land which is the subject of the said appeal or application.  The plat shall be drawn to scale and show the ownership of all real estate lying within two hundred (200) feet from the boundaries of the applicant’s real property.  The location of all present and proposed improvements relating to the applicant's property shall be shown on the plat.

Four to six weeks will pass between submission of the application and the date for the BOZA Public Hearing.  The delay is due to a required period for legal advertisements, and time to prepare your request.  You may bring any maps, graphs, or other materials that will help you explain your request to the meeting.  Adjacent property owners and other interested parties will also be allowed to speak at the public hearing.

At the close of the public hearing, the BOZA will decide to either approve, deny, or table your request to a future meeting for further study.  You will be notified by letter of the decision of the BOZA.

If the BOZA finds in your favor, the Codes Administrator or Building Inspector will be notified and may issue your building permit upon your request.

If your request is denied, you may:

1.  Ask for a rehearing indicating intent to present new and heretofore unheard testimony; or

2.  Appeal the decision of the BOZA to the County Circuit Court within thirty (30) days of the decision of the BOZA.

 

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