(a) Intent. The purpose of this Section is to provide guidelines and standards to be followed by the Board, or the Commission where applicable, in considering requests for variances and appeals, where the jurisdiction of the Board, or the Commission where applicable, has been established by these regulations or by the Revised Code.
(b) Purpose of Variances and Appeals.
(i) Appeals. Generally, an appeal may be taken to the Board by a person, or by any office, department, board, or bureau aggrieved by a decision of any administrative or enforcement official or body charged with enforcement of this Ordinance. An appeal must be filed within 14 days of issuance of the applicable written decision, and such appeal shall be made on forms made available by the Administrative Official.
(ii) Variances. Where there are “practical difficulties” (for area variances), “unnecessary hardships” (for use variances), “particular hardships” (for sign variances) or “unusual or exceptional factors” (for subdivision variances) preventing a property owner from conforming with the strict letter of this Ordinance, the Board, or the Commission where applicable, shall have the power to authorize variances from the standards in this Ordinance, with such conditions and safeguards as it may determine to be necessary so that the spirit of this Ordinance is observed, public safety secured, and substantial justice done.
(c) Stay of Proceedings. An appeal to the Board, or the Commission where applicable, shall stay enforcement proceedings in furtherance of the appealed action, unless the Administrative Official certifies to the Board, or the Commission where applicable, that by reason of the facts stated in the appeal, a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed other than by an injunction granted by the Court of Common Pleas. A stay of proceedings shall not stay the City’s authority to issue a stop work order on a project that may be in progress and being performed in a manner that is not in conformance with applicable ordinances and regulations. Also, it shall not stay a project when the appeal is brought by a third-party contesting the issuance of a permit.
(d) Application to the Board, or the Commission where applicable. Variances and appeals for which Board, or Commission where applicable, action is sought shall be commenced by a person filing an application to the Board, or the Commission where applicable, on forms as specified by the Administrative Official and accompanied by required fees. The application shall specify the grounds upon which the appeal is based and shall contain a notarized signature of the property owner or owner’s agent. Applications involving a request for a variance shall specify the section number(s) containing the standards from which a variance is sought and the nature and extent of such variance.
(e) Plot Plan Requirements. Applications involving a specific site shall be accompanied by a plot plan drawn to scale that includes the following information, where applicable:
(i) Applicant’s name, address, and telephone number.
(ii) Property tax identification number, scale, northpoint, and dates of submission and revisions.
(iii) Zoning classification of petitioner’s parcel and all abutting parcels.
(iv) Existing lot lines, building lines, structures, parking areas, driveways, and other improvements on the site and within 50 feet of the site.
(v) For variances requested from any dimensional standard of this Ordinance, the plot plan shall include verified measurements of existing conditions and the proposed dimensions or calculations regarding the specific standards from which the variance is sought.
(vi) Any additional information required by the Administrative Official or the Board to make the determination requested herein.
Where an application to the Board involves a variance sought in conjunction with a site plan review by the Commission, the application data requirements for site plan review as set forth in this Ordinance shall be followed.
(f) Review by the Board. The Administrative Official shall forward the application, along with any supporting materials and plans to the Board. The Administrative Official or the Board, or the Commission where applicable, shall fix a reasonable time for the hearing of the appeal or variance. Notice of the public hearing shall be published in a newspaper of general circulation in the City, and sent by mail or personal delivery to the owners of property for which conditional use approval is being considered, and to all owners of property adjacent to and directly across the street from the property in question. At the hearing, a party may appear in person or by agent or by attorney.
(g) Decision by the Board, or the Commission where applicable. The concurring vote of three members of the Board shall be necessary to reverse an order, requirement, decision, or determination of the administrative official or body, or to decide in favor of the applicant any matter upon which they are required to pass under, or to effect any variation in an ordinance adopted pursuant to the Revised Code. The concurring vote of a majority of those Commission members present at any meeting shall be necessary to effect any variation in an ordinance adopted pursuant to the Revised Code. The Board, or the Commission where applicable, may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination, in accordance with the guidelines set forth herein. To that end, the Board, or the Commission where applicable, shall have all the powers of the officer or body from whom the appeal was taken and may issue or direct the issuance of a permit. With an affirmative decision, the Board, or the Commission where applicable, may impose conditions. The decision of the Board, or the Commission where applicable, shall be final, but the City with approval by the Council or any person having an interest affected by a decision of the Board, or the Commission where applicable, may appeal to the Court of Common Pleas, and to any Court of final jurisdiction.
(h) Record of Decision and Order. The Board, or the Commission where applicable, shall prepare and retain a record of each appeal, and shall base its decision on this record. This record shall include:
(i) The relevant administrative records and the administrative orders issued thereon relating to the appeal.
(ii) The notice of the appeal.
(iii) Such documents, exhibits, plans, photographs, or written reports as may be submitted to the Board for its consideration.
The written findings of fact, the decisions, and the conditions imposed by the Board, or the Commission where applicable, in acting on the appeal shall be entered into the official record, after being signed by the Secretary of the Board, or the Commission where applicable.
(i) Approval Period. If construction has not commenced within 24 months after the Board grants a variance to permit the erection or alteration of a building, then the variance becomes null and void. If construction has not commenced within 24 months after the Commission grants a variance to permit the construction of a subdivision, then the variance becomes null and void. The period of approval may be automatically extended by 12 months if the variance was sought in conjunction with a site plan or subdivision for which approval has been extended by the Commission.
(Ord. 35-07. Passed 3-19-07.)
(j) Standards for Variances and Appeals. Variances and appeals shall be granted only in accordance with and based on the findings set forth in this Section. The burden of proof for variances and appeals shall be upon the applicant. The extent to which the following factors, standards, and criteria apply to a specific case shall be determined by the Board, or the Commission where applicable.
(i) Factors Applicable to Area Variances (“practical difficulties”). The applicant shall show by a preponderance of the evidence that the variance is justified, as determined by the Board, or the Commission where applicable. The Board, or the Commission where applicable, shall weigh the following factors to determine whether an area variance should be granted:
(Ord. 45-09. Passed 9-8-09.)
(1) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(2) Whether the variance is insubstantial;
(3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
(4) Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
(5) Whether the property owner purchased the property with knowledge of the zoning restrictions;
(6) Whether the property owner’s predicament feasibly can be obviated through some method other than a variance; and/or
(7) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance.
(ii) Standards Applicable to Use Variances (“unnecessary hardships”). The applicant shall demonstrate by clear and convincing evidence that all of the following standards have been met in order to justify the granting of a use variance, as determined by the Board:
(1) The variance requested stems from a condition which is unique to the property at issue and not ordinarily found in the same zone or district;
(2) The hardship condition is not created by actions of the applicant;
(3) The granting of the variance will not adversely affect the rights of adjacent owners;
(4) The granting of the variance will not adversely affect the public health, safety or general welfare;
(5) The variance will be consistent with the general spirit and intent of this Ordinance;
(6) The variance sought is the minimum which will afford relief to the applicant; and
(7) There is no other economically viable use which is permitted in the zoning district.
(iii) Criteria Applicable to Sign Variances (“particular hardships”). The applicant shall demonstrate by clear and convincing evidence that all of the following standards have been met in order to justify the granting of a sign variance, as determined by the Board:
(1) The granting of the requested variance would not be detrimental to the property owners in the vicinity;
(2) Hardship caused the sign user under a literal interpretation of this Ordinance is due to conditions unique to the property and does not apply generally to the City. The hardship cannot be created by prior actions or inactions of the applicant;
(3) The granting of the variance would not be contrary to the general objectives of this Ordinance; and
(4) The granting of the variance shall be for the minimum required to offset the hardship.
(Ord. 35-07. Passed 3-19-07.)
(iv) Criteria Applicable to Subdivision Variances (“unusual or exceptional factors”). The applicant shall demonstrate by clear and convincing evidence that all of the following standards have been met in order to justify the granting of a subdivision variance (from Chapter 1136, 1164, 1166 or 1168), as determined by the Commission:
(Ord. 45-09. Passed 9-8-09.)
(1) Unusual topographical or exceptional physical conditions exist;
(2) Strict compliance with the requirement should create an extra hardship in the face of the exceptional conditions;
(3) The variance sought is the minimum which will remove the extraordinary hardship; and
(4) The variance will not be detrimental to the public interest or in conflict with the intent and purposes of this Ordinance.
(v) Criteria Applicable to Appeals. The Board shall reverse an order of a zoning official only if it finds that the action or decision appealed:
(1) Was arbitrary or capricious; or
(2) Was based on an erroneous finding of a material fact; or
(3) Was based on erroneous interpretation of this Ordinance or zoning law; or
(4) Constituted an abuse of discretion.