1139.03 VARIANCES.

   The purpose of this section is to provide a procedure for application, consideration, and decision regarding variances which may allow relief, under specific circumstances, from strict application of the provisions of this Zoning Code.

   (a)   Standing to Apply for Variance. An application for a variance shall only be submitted by an owner of property, or a person authorized in writing by the owner, subsequent to written denial of zoning approval by the Director or by the Directors’ designee.

   (b)   Application. An application for a variance shall be submitted at least fifteen (15) days before the regularly scheduled meeting of the Board of Zoning Appeals at which the application will be considered. The application shall include at least the following:

      (1)   The name, address and telephone number of the applicant, owner, agent, or person in control and, if a corporation, the correct name of the corporation, the statutory agent and the agent’s address, and of the applicant’s representative, if any;

      (2)   A legal description of the property;

      (3)   A description of the variance requested and reference to the specific provision(s) of this Code from which the variance is requested;

      (4)   Narrative statements justifying the granting of a variance in accord with the standards for a variance stated in Section 1139.03(e).

      (5)   A fee as required in Chapter 1135.

      (6)   Deposit requirements. In the event the Board finds it necessary to seek any planning, legal, engineering or other expert testimony, the applicant shall deposit an amount adequate to cover the costs prior to final hearing on the variance application. Any other expense incurred or expected to be incurred by the City shall also be deposited with the City prior to final hearing on such application. All of the expenses mentioned beforehand shall bear a relationship to the cost of operation and shall be set by the Clerk of Council and/or the Director of Finance after consultation with the Board and/or Law Director.

   (c)   Notice and Hearing. When a notice of appeal or variance has been filed in proper form with the Clerk of the Board of Zoning Appeals, the Clerk shall immediately place the request for appeal or variance upon the calendar for hearing, and shall cause notices, to be issued as provided in Section 1139.06 , Uniform Notice of Hearing. The Board shall conduct the hearing at the date, time, and place stated in the notices. The Board may recess such hearings from time to time and, if the time and place of the continued hearing is publicly announced at the time of adjournment, no further notice shall be required.

   (d)   Board Action. Within a reasonable time after the public hearing, the Board of Zoning Appeals shall either approve, approve with supplementary conditions, or deny the request for variance. Every decision of the Board shall be by resolution, each of which shall contain a full record of the findings of fact of the Board by application number together with all documents pertaining thereto. The time of effect of the action of the Board is the time of service of notice to the applicant.

   (e)   Standard for Approval of Variances.

      (1)   The applicant must demonstrate that practical difficulties in the use of the property will exist if the property is subject to the zoning regulation. The Board shall consider and weigh the following factors in determining whether the owner of the property seeking an area variance will encounter practical difficulties in the use of the property. If the factors weigh in favor of the variance, then practical difficulties exist and the Board shall grant the variance. If the factors weigh against the variance, then practical difficulties will not exist and the Board shall deny the variance. The factors are:

         A.   Whether the property will yield a reasonable economic return or have any beneficial use if the variance is denied;

         B.   Whether the variance is substantial;

         C.   Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment if the variance is granted;

         D.   Whether the delivery of governmental services (for example, water, sewer, garbage) would be adversely affected if the variance is granted;

         E.   Whether the property owner purchased the property with knowledge of the zoning regulation;

         F.   Whether the property owner’s predicament feasibly can be solved through some method other than the variance; or

         G.   Whether the spirit and intent behind the zoning regulation would be observed and substantial justice done if the variance is granted.

      (2)   No use variances. Use variances are not permitted.

   (f)   Conditions and Safeguards. The Board may prescribe any conditions, including a time limit for the effective period of the variance, it deems necessary to ensure that the variance is carried out in a manner consistent with the intent and provisions of this Zoning Code. Conditions shall be stated for the record and made part of the motion to approve a variance. Any violation of such conditions and safeguards, when they have been made a part of the terms under which the variance has been granted, shall be deemed a punishable violation under this Code.

   (g)   Effect of Board Decision, Expiration of Variance. The effect of approval of a variance by the Board shall be to order the Director to issue zoning approval authorizing use or construction consistent with the variance and any conditions attached to the approval, provided that the proposed use or construction conforms to the provisions of this Code in all other respects. No variance shall be valid for a period longer than twelve (12) months from the date of such order unless the building permit or zoning approval is obtained within such period, and unless the erection or alteration of a building is started or the use is commenced within such period in compliance with the approvals and permits. In the alternative, a variance granted in association with a preliminary or final site plan shall not expire as long as the approval of the associated site plan has not expired. When a site plan has been stipulated as a condition of approval of the variance, the granting of the variance shall be contingent on conformance with the site plan.

      (Ord. 2008-194. Passed 12-1-08.)