(a) The Board of Zoning Appeals shall act in accordance with the procedure specified by law, including this Zoning Code. The Board shall keep minutes of its proceedings showing the vote, absence or failure to vote of each member upon every question. All appeals and applications made to the Board shall be in writing and on the forms prescribed therefor. Every appeal or application shall refer to the specified provision of the Zoning Code involved and shall exactly set forth the interpretation that is claimed, the use for which the certificate is sought or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. Every decision of the Board shall be by resolution, each of which shall contain a full record of the findings of the Board in the particular case. Each such resolution, together with all documents pertaining thereto, shall be filed in the office of the Board by case number under one of the following headings: Variances; Interpretation; or Certificate. In the event that the Board finds it necessary to draw upon any planning, legal, engineering or any other expert testimony, any costs incurred shall be charged to the applicant.
(b) Appeals.
(1) The Board shall hear and determine all appeals from any decision or action of the Building and/or Zoning Inspector, and/or the Planning Commission in the administration or enforcement of the City Zoning Code. The Board shall hear and determine all appeals resulting from the refusal of the Building and/or Zoning Inspector, and/or the Planning Commission, because of anything contained in said Zoning Code, to issue zoning certificates.
(2) All appeals shall be filed with the Board of Zoning Appeals within twenty (20) days following any action taken by the Building and/or Zoning Inspector, and/or the Planning Commission and shall be upon the form provided and the necessary fee shall be paid in advance. (Ord. 147-05. Passed 1-23-06.)
(c) Variances.
(1) Where there are practical difficulties of unnecessary or particular hardship in the way of carrying out the strict letter of the City Zoning Code, the Board shall have the power, in passing on appeals, to vary or modify any of the provisions of said Zoning Code relating to the use of land, buildings or structures so that the spirit of said Zoning Code shall be observed, public safety secured and substantial justice done, the Board shall have no power to grant variances in residentially zoned areas except those permitted in the residential zone in which the variance is sought and except in the R-R Rural Residential Zoning District upon a finding of the following minimum conditions:
A. The property is a minimum of ten (10) acres in size;
B. The property is adjacent to property in common ownership; and
C. The proposed use of the property is not expressly prohibited.
(Ord. 46-12. Passed 5-21-12.)
(2) In every instance of the granting of a variance by the Board, there shall be a showing by the Board that:
A. The strict application of the provisions of the City Zoning Code would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of said Zoning Code;
B. There are exceptional or extraordinary circumstances or conditions applying to the property involved or to the intended use or development of the property that do not apply generally to other properties or uses in the same zoning district or neighborhood; and
C. The granting of such variance will not be of substantial detriment to public interest or to property or improvements in such district in which the variance is sought and will not materially impair the purpose of the City Zoning Code.
(3) In specific instances the Board may permit such modification of the yard or lot area or width regulations as may be necessary to secure the appropriate improvement of a parcel of land that is too small to be improved without such modification, if such parcel was separately owned at the time of passage of the City Zoning Code or is adjacent to buildings that do not conform to the general restriction applicable to their location.
(4) In granting a variance, the Board may impose such conditions as it may deem necessary to protect the public health, safety or welfare and to carry out the purposes and intent of the City Zoning Code.
(d) Public Notice. Public notice shall be given of hearings on any appeals by the publication of a notice once in a newspaper of general circulation within the City at least ten (10) days before the hearing. Written notice, by certified mail, return receipt requested, of a variance request to be considered by the Board of Zoning Appeals shall be given to the property owners residing within the corporation limits of the Municipality, and/or residing within Brunswick Hills Township, whose properties are within two hundred (200) feet in either direction from, and on both sides of the street on which the property is situated, the property for which a variance is requested, at least ten (10) days before the hearing.
(e) Review. To review, upon motion of any two (2) members of the Board, any rule, regulation or decision of the Board, but no such review shall prejudice the rights of any person who has in good faith acted thereon before it is reversed or modified.
(Ord. 147-05. Passed 1-23-06.)
(f) Continuances. Any applicant for a variance or appeal may, upon prior written notice to the Board, continue the scheduled hearing of its application to the next regularly scheduled Board meeting. In the event any continuation notice is received by the Board after the provision of public notice as contained in subsection (d) herein, such applicant shall be responsible for all costs incurred by the Board, including, without limitation, public notice expenses.
In the event an applicant for a variance or appeal fails to appear at the scheduled Board meeting, such applicant shall be entitled to one automatic continuance. In such event, the applicant shall be responsible for all costs incurred by the Board, including, without limitation, public notice expenses. Any additional failure to appear shall result in the Board dismissing the application for a variance or appeal with prejudice, which shall be deemed a denial of such application.
(g) Withdrawal. Any applicant for a variance or appeal may, upon prior written notice to the Board, withdraw such application one time without prejudice. In such event, the applicant shall forfeit any filing fee and, upon refiling such application, shall be responsible for all fees associated therewith. Any additional withdrawal of the application shall be deemed a denial of such application.
(h) Time Period to Act. The Board shall approve or deny any application for a variance or appeal within 180 days of final submission. Failure to act upon an application within such specified time shall be deemed a denial of such application unless withdrawn by the applicant. (Ord. 102-13. Passed 12-16-13.)