§ 153.038  POWERS AND DUTIES.
   The ZBA shall have jurisdiction and powers granted by the Zoning Act, jurisdiction and powers prescribed in other subchapters of this chapter and the following specific jurisdiction and powers.
   (A)   Powers.
      (1)   The ZBA shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms of this chapter.
      (2)   The decision of the ZBA shall be final. However, a person having an interest affected by this chapter may appeal to the Circuit Court for review pursuant to the Zoning Act.
      (3)   In granting a variance, the ZBA may attach thereto such conditions regarding the location, character and other features of the proposed uses as it may deem reasonable in furtherance of the purpose of this chapter.
   (B)   Appeals of administrative decisions.
      (1)   General. The ZBA shall hear and decide appeals where it is alleged by the appellant that there is error in any order, interpretation, requirement, permit, decision or refusal made by any administrative official or body in enforcing any provision of this chapter. Appeals may be taken by a person aggrieved or by an officer, department, board or bureau of the state or city. In order to be aggrieved by a decision of the city, the person or other entity making the appeal must have a property interest and sufficient standing as recognized under the law to challenge the decision.
      (2)   Filing and hearing of appeal.
         (a)   Appeals shall be filed with the Zoning Administrator within 30 days of the action being appealed.
         (b)   The Zoning Administrator or designee and any person from whom the appeal is taken shall transmit to the ZBA all of the documents and records related to the appeal.
         (c)   The ZBA shall fix a reasonable time for the hearing of the appeal and shall provide notice as required by the Zoning Act.
         (d)   The applicant, or his, her or their duly authorized agent, must appear in person at the hearing in order for the ZBA to take action. Failure to appear may result in tabling or denial of the application.
      (3)   Decisions on appeal.
         (a)   An appeal to an administrative decision may be reversed by the ZBA only if it finds that the action or decision appealed meets one or more of the following requirements:
            1.   Was arbitrary or capricious;
            2.   Was based on an erroneous finding of a material fact;
            3.   Constituted an abuse of discretion;
            4.   Was based on an erroneous interpretation of this chapter or zoning law.
         (b)   If a determination is made that the administrative official or body making the decision did so improperly, the ZBA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make an order, requirement, decision or determination as ought to be made and, to that end, shall have all the powers of the administrative official or body from whom the appeal was taken.
   (C)   Interpretation. Upon request of the Planning Commission, City Council, Zoning Administrator or designee, or applicant, the ZBA may interpret and clarify the meaning of ordinance text. The ZBA may also be requested to interpret boundaries of zoning districts where the zoning district classification cannot be clearly discerned on the zoning map.
   (D)   Special land uses and planned unit developments (PUDs).
      (1)   The ZBA may grant dimensional or other site plan related variances for special land uses; however, the ZBA shall not have the power to reverse or modify the Planning Commission’s decision to approve or deny a special land use permit nor grant variances to any conditions placed on special land use approval.
      (2)   The ZBA shall not have the authority to grant variances to the PUD regulations of §§ 153.270 through 153.278 of this chapter or any requirements placed on PUD approval. However, the ZBA shall have the authority to hear and decide appeal requests by individual lot owners for variances from other sections of this chapter following final approval of the PUD; provided, such variances do not affect the terms or conditions of the original PUD approval or constitute a variance to the PUD regulations of §§ 153.270 through 153.278 of this chapter.
   (E)   Approvals. To hear and decide requests for other decisions that this chapter specifically authorizes the ZBA to pass.
   (F)   Dimensional variances.
      (1)   The ZBA, after holding a public hearing in accordance with the requirements of the Zoning Act, shall have the power to grant requests for dimensional variances from the provisions of this chapter where it is proved by the applicant that there are practical difficulties in the way of carrying out the strict letter of this chapter relating to the construction, equipment or alteration of buildings or structures, or of storm water management requirements so that the spirit of this chapter shall be observed, public safety secured and substantial justice done.
      (2)   A dimensional variance may be allowed by the ZBA only in cases where the applicant has shown a practical difficulty in the official record of the hearing. The applicant must prove that all of the following conditions have been met:
         (a)   Extraordinary circumstances. There are exceptional or extraordinary circumstances or conditions applying to the property in question that do not apply generally to other properties in the same zoning district. Exceptional or extraordinary circumstances or conditions may include:
            1.   Exceptional narrowness, shallowness, small size or shape of a specific property on the effective date of this chapter;
            2.   Exceptional topographic conditions or other extraordinary situation on the land, building or structure; and
            3.   The use or development of the property immediately adjoining the property in question, whereby the literal enforcement of the requirements of this chapter would involve practical difficulties.
         (b)   Substantial justice. Compliance with the strict letter of the restriction’s governing area, setbacks, frontage, height, bulk, density or other dimensional provisions would unreasonably prevent the use of the property. Granting of a requested variance or appeal would do substantial justice to the applicant as well as to other property owners in the district and such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. Any variance granted shall be the minimum necessary to allow the preservation of these substantial property rights. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.
         (c)   Impact on the surrounding neighborhood. The variance will not be detrimental to adjacent property and the surrounding neighborhood or interfere with or discourage the appropriate development, continued use or value of adjacent properties and the surrounding neighborhood as compared to other uses in the neighborhood.
         (d)   Public safety and welfare. The granting of the variance will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets, or increase the danger of fire or endanger the public safety, comfort, morals or welfare of the inhabitants of the city.
         (e)   Not self-created. The immediate practical difficulty causing the need for the variance request was not self-created by the applicant or previous owners of the subject property.
   (G)   Use variances.
      (1)   Application requirements. In addition to the information required for other variance requests, an application for a use variance shall include a plan drawn to scale detailing the specific use and improvements proposed by the applicant and a summary of the facts which support each of the following conclusions:
         (a)   Applicant’s property cannot be used for the purposes permitted in the zoning district;
         (b)   Applicant’s plight is due to unique circumstances peculiar to his property and not to general neighborhood conditions;
         (c)   Applicant’s suggested use would not alter the essential character of the area;
         (d)   Applicant’s problem has not been self-created;
         (e)   Unavailability of administrative relief which may afford reasonable use of the applicant’s property; and/or
         (f)   At the end of each of divisions (G)(1)(a) through (G)(1)(e) above, identify all persons who will testify at the hearing with respect to each of the facts and, separately, identify all persons who will testify at the hearing relative to the respective conclusion (and if any person is to be offered as an expert witness, include with the application a resume which shows the education and experience of such person within the particular area of expertise).
      (2)   Use variance; pre-hearing conference.
         (a)   Prior to the scheduling of a hearing, the applicant shall contact the Zoning Administrator or designee for the purpose of scheduling a pre-hearing conference.
         (b)   The purposes of the pre-hearing conference shall be to:
            1.   Review the procedure for the hearing and identify all persons who will testify (directly or through affidavit) and the evidence to be offered on behalf of the applicant;
            2.   Attempt to secure a statement of agreed-upon facts to be used to narrow the matters of dispute and shorten the hearing;
            3.   Explore a means of providing relief to the applicant by way of a non-use variance from the ZBA, or other relief which may require action by persons or bodies other than the ZBA which will afford an adequate remedy for the applicant; and
            4.   Discuss the need, desirability and the terms of providing a verbatim record of the hearing.
         (c)   The Zoning Administrator or designee shall determine who should be present at the pre-hearing conference based upon the application submitted and taking into consideration the discussion with the applicant or the applicant’s representative.
         (d)   The pre-hearing conference shall be scheduled and conducted on an expeditious basis so as to avoid unreasonable delay to the applicant. Sufficient time shall be taken, however, to achieve the purposes of the pre-hearing conference stated above.
      (3)   Use variance; hearing procedure.
         (a)   The applicant will have the burden of proof. In order to be entitled to relief, the applicant must demonstrate each of the five factors in division (G)(1) above.
         (b)   Manner of presentation.
            1.   Community representatives shall present an overview of the zoning regulations involved. This may include an indication of the objectives sought to be achieved in the zoning district, and any planning, engineering, financial, environmental or other considerations which are generally relevant within the zoning district and/or in the general area of the property at issue.
            2.   The applicant may present witnesses, including the applicant, or may submit affidavits for the purpose of attempting to prove facts or conclusions. The applicant shall be provided with the opportunity to present all testimony and evidence proposed to be presented at the pre-hearing conference, either through witnesses or affidavits; however, the Chairperson of the ZBA may restrict testimony and evidence which would result in unreasonable duplication. In addition, by motion made on its own or at the request of a person at the hearing, the ZBA may require the presence of any witness who has offered either testimony by affidavit on a material question of fact or testimony of an expert nature, with the view of permitting members of the ZBA to ask questions of such witnesses.
            3.   At the conclusion of the applicant’s presentation, interested persons attending the hearing shall be provided with the opportunity to present testimony and evidence in the same manner, and subject to requiring the presence and questioning of witnesses as provided above for the applicant.
         (c)   When interested persons have completed their presentations, at the same meeting and/or at an adjourned meeting date, testimony and evidence may be presented on behalf of the community in the same manner, and subject to requiring the presence and questioning of witnesses, as provided above for the applicant. The purpose of such presentation shall be to ensure that a full picture, including all relevant information, is before the ZBA for consideration as it relates to the specific application presented.
         (d)   If testimony or evidence has been offered by or on behalf of interested persons and/or the community, the applicant shall have the opportunity to make a responsive presentation, restricted to answering the points raised by interested persons and community representatives. The manner of presenting witnesses, and requirement of their presence and questioning, shall be the same as provided above for the applicant’s principal case.
         (e)   If a hearing is not completed at a given meeting within the time period allowed by the ZBA, the Board shall adjourn the hearing to a date certain for continuation.
      (4)   Use variance; decision of the Zoning Board of Appeals.
         (a)   The ZBA may deem it appropriate in any given case to provide an opportunity for anyone presenting testimony or evidence to submit proposed findings of facts and conclusions.
         (b)   At the conclusion of the hearing, the ZBA may make its decision at that meeting, or it may adjourn the hearing to a new date for the purpose of reviewing the testimony and evidence, and reviewing proposed findings and conclusions submitted by hearing participants in preparation for making its decision.
         (c)   If the ZBA determines to grant variance relief, it shall be the minimum relief required to allow reasonable use of the property while maintaining the essential character of the area. Such relief may be in the form of one or more non-use variances and/or in the form of a use variance. Conditions which are designed to ensure compliance with the intent of this chapter and other regulations of the city may be imposed on a use variance. Conditions imposed shall be based on the following criteria:
            1.   Ensure that public services and facilities affected by the proposed land use and site plan will not be adversely affected;
            2.   Ensure that the use is compatible with adjacent land uses and activities;
            3.   Protect natural resources, the health, safety, welfare and social and economic well-being of those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole;
            4.   Ensure compatibility between the proposed use or activity and the rights of the city to perform its governmental functions;
            5.   Meet the intent and purpose of the zoning ordinance, be related to the regulations and standards established in the ordinance for the land use or activity under consideration and be necessary to ensure compliance with those standards;
            6.   Ensure compliance with the intent of other city ordinances that are applicable to the site plan; and
            7.   Ensure compatibility with the other uses of land in the vicinity.
         (d)   If the ZBA adopts a motion to grant variance relief, such a motion may be made as a tentative grant of relief, subject to review by the Planning Commission, Zoning Administrator/consultant, engineer or other person or official with expertise with a view of obtaining recommendations on any conditions that may be relevant and authorized by law, and for the further purpose of ensuring that the grant of relief would not violate applicable law. If such a tentative grant of relief is approved, the ZBA shall request the completion of all reviews by other boards or persons by a specific date so that relief may be expeditiously finalized.
      (5)   Use variance standards for review. A use variance may be allowed by the ZBA only in cases where the applicant has shown an unnecessary hardship in the official record of the hearing. The applicant must prove that all of the following conditions have been met:
         (a)   Hardship. The applicant has demonstrated that the site cannot reasonably be used for any of the uses allowed within the current zoning district designation. The ZBA may require professionals or certified experts to submit documents to substantiate this finding;
         (b)   Unique circumstances. The condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zone district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to reasonably use the property. Such unique conditions or situations include:
            1.   Exceptional narrowness, shallowness, small size or shape of a specific property on the effective date of the ordinance from which this chapter is derived;
            2.   Exceptional topographic conditions or other extraordinary situation on the land, building or structure;
            3.   The use or development of the property immediately adjoining the property in question; and
            4.   Any other physical situation on the land, building or structure deemed by the ZBA to be extraordinary.
         (c)   Character of neighborhood. The use variance will not alter the essential character of the neighborhood or the intent of the comprehensive development plan, or be a detriment to adjacent properties;
         (d)   Capacity of roads, infrastructure and public services. The capacity and operations of public roads, utilities, other facilities and services will not be significantly compromised; and
         (e)   Not self-created. The immediate practical difficulty causing the need for the variance request was not self-created by the applicant or previous owners of the subject property.
(Prior Code, § 5.178)