(a) Requests for variances from this Zoning Code shall be heard and decided by Council or the Board of Zoning and Planning as permitted under the provisions of this chapter. In granting a variance pursuant to this section, the BZAP or Council may impose such requirements and conditions as each deems necessary to carry out the intent and purpose of the zoning code and otherwise safeguard the public health, safety and welfare. BZAP and Council shall follow the same procedures for notice of public hearing as provided in the Rules and Regulations of the BZAP.
(b) Nature of Variance. On a particular property extraordinary circumstances may exist, making a strict enforcement of the applicable requirements of this Code unreasonable, and therefore, the variance procedure is provided to allow the flexibility necessary to adapt to changed or unusual conditions that meet the standards of review for variances. In granting any variance, the BZAP or City Council shall prescribe appropriate conditions and safeguards to maintain the intent and spirit of the zoning district in conformity with the Zoning Code.
(c) Area (Non Use) Variances. The BZAP shall have the power to grant area (non-use) variances from the provisions of this Zoning Code except for a variance from the minimum lot requirements of any district, which may only be determined by City Council applying the standards for an area variance. City Council shall also have the authority to grant other area variances only in conjunction with a variance from the minimum lot requirements of any district or a use variance. City Council may request and consider the recommendation of any City board or commission for requirements and conditions when determining any variance. BZAP and City Council shall only approve a request for an area (non-use) variance in cases where the evidence demonstrates that the literal enforcement of this Code will result in practical difficulty and the granting of a variance complies with the purpose and intent of this Code. The following factors shall be considered and weighed by the Board when making a determination upon any area (non-use) variances by a preponderance of the evidence:
(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 substantial;
(3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a 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 restriction;
(6) Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
(7) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
(d) Use Variances. Only City Council shall have the power to grant use variances from the provisions of this Zoning Code. City Council shall also have the authority to grant area variances in any district pursuant to the area variance standards provided in paragraph (c) above, in conjunction with a use variance. City Council may request and consider the recommendation of any City board or commission for requirements and conditions when determining any variance. Final approval of a use variance shall only be granted by the City Council in cases where there is evidence that there are unnecessary hardships if strict compliance with the terms of the Code is required which are caused by exceptional or extraordinary circumstances or conditions applying to the property involved, or to the intended use of the property, that do not generally apply to other property or uses in the vicinity in the same zoning district. Such hardship must be demonstrated by clear and convincing evidence that there are exceptional or extraordinary circumstances or conditions. The following factors shall be considered and weighed by Council when making a determination upon any use variance:
(1) The property cannot be put to an economically viable use under any of the permitted uses in the Zoning District;
(2) 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;
(3) The hardship condition is not created by any action or inaction of the applicant;
(4) That the proposed use will not alter the essential character of or be detrimental to adjacent property and the surrounding neighborhood;
(5) The granting of the variance will not adversely affect the public health, safety or general welfare;
(6) The variance will be consistent with the general spirit and intent of the Code; and
(7) The variance sought is the minimum which will afford relief to the applicant.
(e) Expiration of Variance.
(1) If construction has not begun or the variance established within one year of the final approval of an area (non-use) variance granted by the Board of Zoning and Planning, the variance shall expire. The Zoning Officer shall have the discretion and authority to extend the variance approval for an additional one-year period if an application for extension is received before the authorization expires. If no construction has begun at the end of this extension, the variance shall become null and void, and a new variance shall be required for any development requiring a variance on that property.
(2) If within one year of the final approval of any variance granted by City Council, the approved use is not established, construction has not been commenced, or the variance established, the variance shall expire. City Council may extend the variance approval for an additional one-year period if an application for extension is received by the Clerk of Council before the authorization expires. If the use has not been established or construction has not begun at the end of this extension, the variance shall become null and void, and a new variance shall be required for any use or development requiring a variance on that property.
(Ord. 29-16. Passed 11-15-16; Ord. 08-20. Passed 7-14-20.)