(a) Exceptions and Interpretations. The Board of Zoning Appeals shall have the power to hear and decide, in accordance with the provisions of the Zoning Ordinance, applications filed as hereinbefore provided for special exceptions or for interpretation of the District Map, or for decisions upon other special questions on which the Board is authorized by the Zoning Ordinance to pass. In considering an application for a special exception or interpretation of the District Map the Board shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a special exception the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation, in addition to those expressly stipulated in the Zoning Ordinance for the particular special exception or as the Board may deem necessary for the protection of adjacent properties and the public interest.
(b) Administrative Review and Variances.
(1) The Board shall have the power to hear and decide appeals, filed as hereinbefore provided, where it is alleged by the appellant that there is error in any order, requirement, decision, grant or refusal made by the Zoning Inspector or other official in the interpretation of the provisions of the Zoning Ordinance.
(Ord. 914. Passed 11-8-66.)
(2) A. The Board shall have the power to authorize upon appeal in specific cases, filed as hereinbefore provided, such variances from the provisions or requirements of the Zoning Code as will not be contrary to the public interest. Where the appellant seeks a variance pertaining to the use of property, no variance may be granted unless, owing to special conditions pertaining to the property at issue, the literal enforcement of the provisions or requirements of the Zoning Ordinance would cause undue and unnecessary hardship.
B. Where the appellant seeks a variance pertaining to an area requirement otherwise applicable to the property, no variance may be granted unless the appellant has demonstrated the literal enforcement of the provisions or requirements of the Zoning Ordinance pertaining to area requirements would cause the appellant practical difficulties.
The factors to be considered and weighed in determining whether an appellant seeking an area variance has encountered practical difficulties in the proposed use of his property include, but are not limited to:
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 appellant purchased the property with knowledge of the zoning restrictions;
6. Whether the appellant'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.
(3) Where the Board has determined that literal enforcement of the requirements of the Zoning Ordinance would involve practical difficulties or would cause undue hardship, unnecessary to carry out the spirit and purpose of the Zoning Ordinance, the Board shall have power to authorize a variance from such strict application so as to relieve such hardship or difficulties so that the spirit and purpose of the Zoning Ordinance shall be observed and substantial justice done. In authorizing a variance the Board may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as it deems necessary in the interest of the furtherance of the purpose of the Zoning Ordinance and in the public interest. In authorizing a variance with attached condition, the Board shall require such evidence and guaranty or bond as it may deem to be necessary to ensure that the conditions attached are being and will be complied with.
(4) No such variance in the provisions or requirements of the Zoning Ordinance shall be authorized by the Board unless the Board finds that the authorizing of such variance will not be of substantial detriment to adjacent property and will not materially impair the purposes of the Zoning Ordinance or the public interest.
(Ord. 1632-90. Passed 10-15-90.)
(5) No grant of a variance shall be authorized unless the Board specifically finds that the condition or situation of the specific piece of property or the intended use of the property for which variance is sought, one or the other in combination, is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situation.
(6) In exercising its power the Board may, in conformity with the provisions of State statutes and the Zoning Ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all powers of the office from whom the appeal is taken.
(c) Performance Requirements Procedure. The Board shall have the power to authorize, upon application in specific cases filed as hereinafter provided, issuance of a zoning certificate for uses that are subject to performance requirements procedure under Chapter 1161 ss provided in the following:
(1) Application. An application for a zoning certificate for a use subject to performance requirements shall be submitted in duplicate on a form prescribed by the Board. The applicant shall also submit in duplicate a plan of the proposed construction or development, including a description of the proposed machinery, processes and products and specifications for the mechanisms and techniques to be used in restricting the emission of dangerous and objectionable elements as set forth in Chapter 1161 in accordance with rules prescribed by the Board specifying the type of information required in such plans and specifications. The fee for such application shall include the cost of the special reports that may be required to process it, as set forth in subsection (c)(2) hereof.
(2) Report by expert consultants. If in its opinion the proposed use may cause the emission of dangerous or objectionable elements the Board may refer the application to one or more expert consultants qualified to advise as to whether a proposed use will conform to the applicable performance standards specified in Chapter 1161 for investigation and report. Such consultant or consultants shall report as promptly as possible after his or their receipt of such application. A copy of such report shall be promptly furnished to the applicant.
(3) Review by Board. Within thirty days after the Board has received the aforesaid application or the aforesaid report, if a report was required, or within such further period as agreed to by the applicant, the Board shall decide whether the proposed use will conform to the applicable performance standards, and on such basis shall authorize or refuse to authorize issuance of a zoning certificate or require a modification of the proposed plan of construction or specifications, proposed equipment or operation. Any zoning certificate so authorized and issued shall be conditioned upon, among other things:
A. The applicant's completed buildings and installations conforming in operation to the applicable performance standards; and
B. The applicant paying the fees for services of the expert consultant or consultants deemed reasonable and necessary by the Board to advise the Board as to whether or not the applicant's completed buildings and installation in operation will meet the applicable performance standards.
(4) Continued enforcement. The Zoning Inspector shall investigate any purported violation of performance standards, and if there is reasonable ground for the same, shall notify the Board of the occurrence or existence of a probable violation thereof. The Board shall investigate the alleged violation and for such investigation shall employ qualified experts. If, after public hearing on due notice, the Board finds that a violation occurred or exists, a copy of the findings shall be forwarded to Council. The services of any qualified experts, employed by the Board to advise in establishing a violation, shall be paid by the violator if the violation is established, otherwise, by the Municipality.
(Ord. 914. Passed 11-8-66.)