The Board of Adjustment shall have only the following powers:
(A) Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirements, decision or determination made by any administrative official or agency based on or made in the enforcement of this chapter or any regulation relating to the location or soundness of structures;
(B) Interpretation: special questions. To hear and decide, in accordance with the provisions of this chapter, requests for interpretation of any map, requirement or provision of this chapter; and
(C) Variances; conditions governing applications: procedures.
(1) Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of this chapter, or by reason of exceptional topographical conditions or other extraordinary and exceptional situations or conditions of the piece of property, the strict practical difficulties to, or exceptional and undue hardships upon the owner of the property, to authorize, upon an appeal relating to the property, a variance from the strict application so as to relieve the difficulties or hardship, if the relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this chapter.
(2) No variance shall be authorized by the Board unless it finds that:
(a) The strict application of this chapter would produce undue hardship;
(b) The hardship is not shared generally by other properties in the same zoning district and the same vicinity;
(c) The authorization of the variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance;
(d) The granting of the variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice;
(e) The hardship does not result from the actions of the owner of the property; and
(f) The granting of the variance will not confer on the owner of the property any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.
(3) No variance shall be authorized unless the Board finds that the condition or situation of the property concerned or the intended use of the property is not so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this chapter.
(4) No nonconforming use of neighboring land, structures or buildings in the same district and no permitted or nonconforming use of lands, structures or buildings in other districts shall be considered grounds for issuance of a variance.
(5) A variance from the terms of this chapter shall not be granted by the Board of Adjustment unless and until:
(a) A written application for a variance is submitted indicating the terms of this chapter under which the variance is sought, stating the ground on which it is requested, and the specific variance requested;
(b) Notice shall be given at least 15 days in advance of public hearing. The owner of the property for which variance is sought or his or her agent shall be notified by mail. Notice of the hearing shall be posted on the property for which variance is sought, at the City Hall and in one other public place, at least 15 days prior to the public hearing;
(c) The public hearing shall be held. Any party may appear in person, or by agent or attorney;
(d) The Board of Adjustment shall make a finding that the reasons set forth in the application justify the granting of the variance under the terms of this chapter, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure; and
(e) The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(6) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of the conditions and safeguards when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under § 152.999.
(7) Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly or by implication prohibited by the terms of this chapter in the district.
(8) In exercising the above-mentioned powers, the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end, shall have all the powers of the officer from whom the appeal is taken.
(9) The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of any the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variation in the application of this chapter.
(Prior Code, § 11-905)