(A) Duties of the Board of Appeals. The Board of Appeals may only hear requests for a variance, administrative review or interpretation of this chapter or zoning map. Circumstances resulting from an act of the applicant, after adoption of this chapter, shall not be allowed to be heard by the Board of Appeals.
(1) Variance. The Zoning Board of Appeals is empowered to grant variances to such requirements as lot area and width regulations, yard and depth regulations, and off-street parking and loading space requirements. Any requirement of this chapter that can be expressed in terms of numbers may be brought before the Zoning Board of Appeals to be considered for a variance.
(2) Administrative review. The Zoning Board of Appeals is empowered to review and reverse or modify any order, decision or determination made by an administrative official charged with enforcing or administering this chapter. The Board is not empowered to overturn decisions of the Planning Commission regarding special use permits, including such permits for planned unit developments. The Board may not overturn the denial of a site plan in connection with any special use permit proceedings.
(a) Requests for administrative review. An administrative review by the Zoning Board of Appeals may be requested by any person aggrieved, or by any officer, department or board of the local government. Any such request must be made in writing not more than ten days after the date of the Zoning Administrator’s decision. The request shall be filed with the Zoning Administrator and shall specify the grounds for the review. The Zoning Administrator shall immediately transmit to the Chairperson of the Board of Appeals any papers constituting the record upon which the action being reviewed was taken.
(b) Stay. An administrative review shall stay all proceedings in furtherance of the action being reviewed, except as follows. If the Zoning Administrator certifies in writing to the Zoning Board of Appeals, after a request for an administrative review has been filed, that a stay would cause imminent peril to life or property, the proceedings shall not be stayed unless a restraining order is issued by the Zoning Board of Appeals or by court action.
(3) Interpretation.
(a) The Zoning Board of Appeals may interpret provisions of this chapter as outlined below.
(b) Each such interpretation shall establish the precedent for future treatment of the issue being addressed.
(c) To achieve the objective of consistent enforcement of this chapter, whenever an interpretation question arises that has been addressed previously by the Zoning Board of Appeals, the earlier interpretation shall apply without requiring further action by the Board. Interpretation issues do not include dimensional variance issues.
(d) The Zoning Administrator shall keep a concise record of all interpretations made by the Zoning Board of Appeals to facilitate such reference.
1. The Board may determine the precise location of the boundary lines between zoning districts.
2. The Board may classify any activity that is not specifically mentioned in the Uses Table in § 154.030 for any zoning district as a use by right or special use within at least one zoning district, provided that said classification shall be consistent with the classification of similar uses and with the purpose and intent of each zoning district.
4. The Board may interpret any portion of this chapter when the Zoning Administrator is unable to clearly determine its intent or effect.
(B) Conditions for granting a variance. A variance may be granted when any one of the following special conditions can be demonstrated clearly:
(1) There are practical difficulties or unnecessary hardships that prevent carrying out the strict letter of this chapter. These hardships or difficulties shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land;
(2) There are exceptional circumstances or physical conditions such as narrowness, shallowness, shape or topography of property involved; or, due to the intended use of the property, that will not apply to other property or uses in the same zoning district. Circumstances resulting from an act of the applicant, after the adoption of this chapter, shall not be allowed a variance; or
(3) Variation is necessary for the preservation of a substantial property right possessed by other properties in the same zoning district.
(C) Fees. A fee as established by the City Commission shall be paid to the City Treasurer at the time of filing application with the Board of Appeals. The purpose of such fee is to cover, in part, the necessary advertisements, investigations and other expenses incurred by the Board of Appeals in connection with the appeal.
(D) Rules for Zoning Board of Appeals actions.
(1) A public hearing must be held by the Zoning Board of Appeals prior to making a decision on a variance, an administrative review or interpretation that relates to a specific parcel; mailed notice shall be given not less than five days nor more than 15 days before the date of the meeting at which the action will be considered. The contents and distribution of said notice shall be as specified by this chapter.
(2) Any decision by the Zoning Board of Appeals must not be contrary to the public interest or to the intent and purpose of this chapter.
(3) In no way may a variance, site plan approval or finding of an administrative review be construed to allow the establishment within a zoning district of any use that is not permitted by right or by special use permit within that zoning district. The Zoning Board of Appeals may only expand the list of permitted uses for any zoning district as a result of an interpretation regarding a use that is not listed anywhere in the Uses Table in § 154.030.
(4) Prior to any decision by the Board of Appeals, the Planning Commission may comment on the issue before the Board and provide a written recommendation of action.
(5) In making any decision, the Zoning Board of Appeals must endeavor to avoid causing a substantial adverse effect upon property values in the immediate vicinity of the subject property. Nor shall such actions have the effect of substantially impacting property values for land in the zoning district in which the subject property is located.
(6) Any action brought before the Zoning Board of Appeals may relate only to a single parcel that must be under control of the applicant. If the applicant is not the owner of the property, evidence must be provided that the owner concurs with the request for Zoning Board of Appeals action.
(7) Approval by the Zoning Board of Appeals of any request may not be granted-simply to prevent an economic loss. Improving an owner’s chance to profit from sale of a parcel is not an objective of this chapter.
(8) Any request that has been denied wholly or in part by the Zoning Board of Appeals may not be resubmitted for a period of one year from the date of the last denial; however, if new evidence or changed conditions are found, the Board may elect to rehear a case, subject to all notice requirements defined by the Actions Table.
(9) The Board of Appeals may attach any reasonable conditions to the approval of any request to secure the objectives and purposes of this chapter. The breach of any such condition shall automatically invalidate any permits granted pursuant to the Zoning Board of Appeals action. When it attaches any conditions to the approval of a request, the Board of Appeals may require that a bond of ample sum be furnished to ensure compliance with the conditions imposed. Said bond shall not exceed $5,000.
(10) A variance must be necessary to overcome practical difficulties or unnecessary hardships that prevent carrying out the strict letter of this chapter. These hardships or difficulties are to be evaluated in terms of the applicant’s ability to physically locate a permitted use on the particular parcel of land. Creation of a nonconforming lot is prohibited.
(11) When a variance is being considered to overcome unique circumstances or physical conditions regarding the configuration of the property involved, these circumstances or conditions must not have resulted from any act of the applicant or property owner subsequent to the adoption of this chapter.
(12) A variance granted under the provisions of this chapter becomes a condition of any permit granted pursuant to the variance or approval. If a building permit issued pursuant to such action is allowed to expire under the provisions of this chapter, any rights granted by the action expire together with the building permit.
(13) The minutes of the Zoning Board of Appeals meeting at which any decision was made regarding a variance, administrative review or interpretation shall include the grounds used by the Board in making said decision, and any conditions that may have been attached to authorization for issuance of a building permit.
(14) If the specific conditions relating to a certain class of property are so general or recurrent in nature as to make similar variances a perennial issue for the Board of Appeals, the Board shall suggest a general regulation for such conditions for the Planning Commission’s consideration. Distribution:
(a) Published. Notice shall be given by one publication in a newspaper of general circulation in the community, printed not less than 15 days before the date of such hearing.
(b) Certified mail. Not less than 20 days’ notice shall also be given by certified mail to each public utility company servicing the community, at the mailing address identified by each company for the purpose of receiving such notice, if they request notification.
(c) Other mailed notice. In any instance involving the rezoning of one or more parcels, or when the owner or other party having an interest in any parcel has requested a text change, notice of the proposed amendment shall be mailed to the owner of the property in question and to all persons residing, doing business or owning property within 300 feet of the premises in question. These persons shall be identified as specified by § 154.154.
(d) Affidavit of mailing. An affidavit of mailing, identifying all parties to whom notice has been sent, shall be prepared and filed with other material relating to the proposed amendment prior to the Planning Commission meeting at which the hearing is to be conducted.
(e) County Planning Commission. Following the conclusion of the public hearing and review by the City Planning Commission, the proposed amendment and any applicable zoning district map may be submitted to the County Planning Commission for its review. The approval of the County Planning Commission shall be presumed, conclusively, unless such Commission notifies the City Commission of its approval or disapproval within 30 days of its receipt of the amendment.
(f) Amendment to conform to court decree. An amendment for the purpose of conforming a provision of this chapter to the decree of a court of competent jurisdiction as to any specific lands may be adopted by the City Commission and the notice of the adopted amendment published without referring the amendment to any other board or agency provided for in this chapter.
(g) City Commission change. If the City Commission deems advisable any changes to the amendment recommended by the Planning Commission, it shall refer these changes back to the Planning Commission for a report thereon within 30 days. The City Commission may deny or adopt the amendment with or without changes, by a majority vote of its membership, following the Commission’s standard procedures for adoption of ordinances.
(h) Resubmittal. No application for a rezoning that has been denied by the City Commission shall be resubmitted for a period of one year from the date of the last denial, except on grounds of newly discovered evidence or proof of changed conditions which, upon inspection by the City Commission, are found to be valid.
(Ord. passed 11-2-2005)