1115.07 VARIANCES; PROCEDURES AND REVIEW CRITERIA.
   A request for variance may be submitted to the Board of Zoning Appeals by the owner of the property involved or a person having a legal interest in such property acting under written authority of the owner. Requests shall be filed with the Zoning Administrator upon the forms provided, and shall be reviewed by the Board pursuant to Section 1109.06(b), and in accordance with the following procedures:
   (a)   Submission Requirements. A request for a variance from a standard in this Zoning Code shall be accompanied by the following requirements necessary to convey the reasons for the requested variance:
      (1)   Name, address, email address and phone number of applicant(s);
      (2)   Proof of ownership, or legal interest and written authority from owner;
      (3)   Description of property or portion thereof;
      (4)   Description or nature of variance requested;
      (5)   Narrative statements establishing and substantiating the justification for the variance pursuant to Section 1115.07(e);
      (6)   Site plans, floor plans, elevations and other drawings at a reasonable scale to convey the need for the variance;
      (7)   Payment of the application fee as established by Council;
      (8)   Any other documents deemed necessary by the Zoning Administrator.
   (b)   Review for Completeness by the Zoning Administrator. Upon receipt of a written request for variance, the Zoning Administrator shall within ten (10) business days make a preliminary review of the request to determine whether such application provides the information necessary for review and evaluation and if it is determined that such application does not provide the information necessary for such review and evaluation, the Zoning Administrator shall so advise the applicant of the deficiencies and shall not further process the application until the deficiency is corrected.
   (c)   Public Hearing by the Board of Zoning Appeals. The Board of Zoning Appeals shall hold a public hearing within seventy-five (75) days from the date the application is accepted as complete by the Zoning Administrator.
   (d)   Notice of Public Hearing. Before conducting the public hearing required in subsection (c) hereof, notice of such hearing shall be posted on the City’s website at least ten (10) days before the date of such hearing. In addition, written notice of the hearing shall be mailed by the Zoning Administrator at least ten (10) days before the day of the public hearing to the applicant and also to the owner of the property if he or she is not the applicant, and to adjacent properties to the attention of the owners of such properties as follows:
      (1)   Properties on the same side of the street which abut the site on which the building or use is sought to be located;
      (2)   Properties on the same side of the street next contiguous to the premises so abutting;
      (3)   Properties across the street immediately opposite the site; and opposite the abutting and contiguous premises referred to in subsections (1) and (2) hereof; and
      (4)   All other premises abutting the site.
   The notice shall set forth the time and place of the public hearing and the nature of the proposed variance. The failure of any person to receive such notice shall not affect the right and power of the Board to hear such request or to take action in accordance with such public notice.
   (e)   Review by Board. The Board of Zoning Appeals shall review each request for a variance to determine if such request complies with the purpose and intent of this Zoning Code and the applicant can demonstrate that the literal enforcement of this Code will result in practical difficulty or, in the case of a use variance, unnecessary hardship.
      (1)   The following factors shall be considered and weighed by the Board in determining whether the applicant has met the burden of demonstrating practical difficulty by the preponderance of the evidence:
         A.   Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same Zoning District; examples of such special conditions or circumstances are: exceptional irregularity, narrowness, shallowness or steepness of the lot, or adjacency to nonconforming and inharmonious uses, structures or conditions;
         B.   Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
         C.   Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
         D.   Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
         E.   Whether the variance would adversely affect the delivery of governmental services such as water, sewer, trash pickup;
         F.   Whether the property owner purchased the property with knowledge of the zoning restrictions;
         G.   Whether special conditions or circumstances exist as a result of actions of the owner;
         H.   Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
         I.   Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance; and
         J.   Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures or buildings in the same district.
      (2)   No variance shall be granted to allow a use not permissible under the terms of this Zoning Code in the zoning district in which the property is located unless the Board finds, and Council approves, that the applicant for the variance has demonstrated that the applicant will suffer unnecessary hardship if strict compliance with the terms of the Code is required and the applicant has met the burden of demonstrating such hardship by clear and convincing evidence as to all of the following criteria:
         A.   The property cannot be put to any economically viable use under any of the permitted uses in the zoning district;
         B.   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;
         C.   The hardship condition is not created by actions of the applicant;
         D.   The granting of the variance will not adversely affect the rights of adjacent property owners or residents;
         E.   The granting of the variance will not adversely affect the public health, safety or general welfare;
         F.   The variance will be consistent with the general spirit and intent of the Zoning Code; and
         G.   The variance sought is the minimum which will afford relief to the applicant.
   (f)   Action by Board of Zoning Appeals. After the public hearing required in subsection (c) hereof, the Board of Zoning Appeals shall either approve, approve with supplementary conditions as specified in subsection (g) hereof, or disapprove the request for variance. The Board shall further make a finding in writing that the reasons set forth in the application justify the granting of the variance that will make possible a reasonable use of the land, building or structure.
   (g)   Conditions and Limitations by Board. The Board of Zoning Appeals may further prescribe any conditions, stipulations, safeguards and limitations on the duration of the variance so authorized as the Board determines and prescribes. Any variance when so issued by the Zoning Administrator upon order of the Board following approval by Council if required by subsection (i) hereof shall set forth such conditions, stipulations, safeguards and duration limit. The Board may not extend the scope or extend the duration of a variance previously issued upon its order. Any additional action so desired may be effected only upon application to the Zoning Administrator for approval of a new variance in accordance with the provisions of this Zoning Code.
   (h)   Time Frame for Board Action. A person initiating a request for variance to the Board may request that the Board approve or disapprove such request for variance within ninety (90) days of the start of the public hearing. A person requesting a variance may by subsequent written communication or by oral representation under oath agree to an extension of such prescribed time for Board action. Failure of the Board to act within the ninety (90) days or extended time period as so agreed upon, shall, at the election of the person seeking such variance, be deemed a denial of the request for variance. A Board action not subject to Council approval by subsection (i) hereof becomes and is in full force and effect at the time of said Board action pursuant to Section 1109.05.
   (i)   Approval by Council. A use variance shall be granted and have effect only following approval by Council. A certified copy of the finding of the Board granting such variance shall be filed with the Clerk of Council. The record before the Board as well as a staff report shall be provided to Council. If Council finds the applicant met the burden of demonstrating all the criteria set forth in Section 1115.07(e)(2) by clear and convincing evidence, Council shall approve the action of the Board. If Council does not find that the applicant demonstrated all the criteria set forth in Section 1115.07(e)(2) to the Board by clear and convincing evidence, Council shall disapprove the action of the Board. Council shall set forth the specific reasons for such disapproval. If, within the forty-five (45) day period next succeeding such filing, Council by a majority vote disapproves the Board's action in granting the use variance, the use variance shall be void and shall not be issued, otherwise the use variance, together with any additional conditions imposed by Council, becomes and is in full force and effect on the day next succeeding the forty-five (45) day period. However, should Council approve the action of the Board within the forty-five (45) day period, the variance becomes in full force and effect from the date of the approval.
   (j)   Terms of the Variance. Each variance granted by the Board of Zoning Appeals shall state upon its face the time limit within which the applicant shall complete the installation, construction or alteration of the structure which is the subject of the application. Failure on the part of the applicant to complete the installation, alteration or construction within the allotted time shall terminate all rights under such permit. However, the Board may, for good cause shown, extend from time to time the time limit but in no case more than a date eighteen (18) months from and after the date of the original time limit within which the applicant was required to complete the installation, construction or alteration, unless construction is actively underway. If any action is taken that is contrary to the terms of the variance or contrary to conditions accompanying the variance, or if the conditions stipulated are not properly maintained, the Board may revoke such variance. A variance granted pursuant to this chapter shall "run with the land" and be valid for successors in interest unless otherwise specified by the Board.
      (Ord. 025-2023. Passed 6-5-23.)