§ 08.02. Modification criteria.

(a)

Determination. In the exercise of this section, the plan commission shall grant the modification only upon the determination that:

(1)

The modification will not be detrimental to the public, health, safety and general welfare of the county or city;

(2)

Adjacent property will not be adversely affected;

(3)

The modification is justified because of exceptional topographic or other physical conditions unique to the property involved, as opposed to mere inconvenience or financial disadvantage;

(4)

The modification is consistent with the intent of this and other applicable ordinances and the County Land Development Plan;

(5)

Modification to the design and engineering standards of this ordinance shall be based upon the recommendation of the city engineer or county highway engineer and based upon supporting engineering data;

(6)

The modification will not conflict with the requirements of the zoning ordinance, including but not limited to lot area, frontage, width, depth and setback(s) unless variances have been obtained under the zoning ordinance;

(7)

The condition necessitating the modification was not created by the owner or subdivider; and,

(8)

The modification will not conflict with the powers and duties of the board of zoning appeals, as defined by the zoning ordinance.

(b)

Request for Modification. A request for a modification shall be submitted, in writing, to the enforcement official and specify the grounds for the request. If the modification involves any design or engineering standards, then the application shall first be submitted to the city engineer or county highway engineer who shall make a recommendation to the plan commission based upon supporting engineering data.

(c)

Placement on the Plan Commission Agenda. Following review of any application for modification, the enforcement official shall, if it is complete and in the appropriate form, place it on the agenda for a public hearing before the plan commission. The subdivider will be notified of a time and the place of such hearing. The plan commission, may, by rule, establish appropriate forms, notice requirements and procedures for all such applications.

(d)

Public Notice. The petitioner shall provide pubic notices setting forth the time and place, given at least ten days before the date of the hearing in a newspaper of general circulation. Notification shall also be provided by at least ten days before the date of the hearing to all adjacent property owners with a certificate of mailing. At the public hearing, the petitioner shall provide proof that he or she has complied with this requirement.

(e)

Public Hearing. At the public hearing, the request will be presented, and all those present will be given an opportunity to be heard regarding the proposal.

(f)

Action. After the public hearing, the plan commission will make a decision regarding the application. The plan commission may take action by majority vote of the membership, which shall:

(1)

Approve the application upon a determination that the application complies with each of the criteria set out in Section 08.02(a) above; or

(2)

Approve the application subject to certain modifications that would bring the application into compliance; or

(3)

Deny the application on the grounds that the application does not comply with each of the criteria set out in Section 08.02(a) above.

(g)

Findings. In approving or denying a modification request, the plan commission shall make specific findings on each of the criteria in this section. If the plan commission approves a modification request, it may impose conditions it deems necessary and proper to carry out the intent and purposes of this ordinance. If approved, the minutes of the plan commission shall reflect the decision and the findings related to the decision.