(A) Authority. In accordance with § 151.308, the Board of Zoning Appeals has the authority to hear and act upon applications for variances to alleviate hardships by virtue of the inability of the landowner to comply strictly with the provisions of this chapter by reasons of unique shape, topography or physical features of the property.
(B) Purpose. The purpose of the variance is to modify the strict application of the specific requirements of this chapter in the case of exceptional irregular, narrow, shallow or steep lots or other exceptional physical conditions, whereby strict application would result in practical difficulty or undue hardship which would deprive an owner of the reasonable use of his or her land. A variance may only be granted if it will not cause substantial detriment to the public good and without substantially impairing the intent of the Zoning Code.
(C) Application for variance; submission deadline and fee.
(1) A written application for a variance shall be filed along with payment of an application fee as prescribed in Resolution 98-28 (as amended) with the Board of Zoning Appeals by the property owner or his or her designated agent on a form provided by the Town. The application shall contain information and exhibits as may be required. An incomplete application or an application that fails to meet minimum submittal requirements shall be returned to the applicant by the Town and shall include a written statement enumerating the deficiency(ies) in the application. The completed application and any proposed supplement thereto shall be submitted in compliance with the then existing required deadlines as set periodically by the Board of Zoning Appeals.
(2) Administrative variances may be granted in the following circumstances.
(a) The Development Director, or his or her designee, may grant an administrative variance of up to 5% of an applicable yard setback for all lots of record. The person seeking the administrative variance must submit an application and fee as is required for other variances. Public notice shall not be required. Appeals shall be to the Board of Zoning Appeals. Public notice of the Board of Zoning Appeal’s hearing on such appeal shall be the same as other variances. Such administrative variance may be granted only when it is determined that a field error has occurred regarding the placement of the principal building on the lot.
(b) For single family dwellings, the Development Director, or his or her designee, may grant an administrative variance of up to 10% of an applicable front building setback required by the Bulk Requirements in § 151.027 for a lot of record. The person seeking the administrative variance must submit an application and fee as is required for other variances. Public notice shall not be required. Appeals shall be to the Board of Zoning Appeals. Public notice of the Board of Zoning Appeal's hearing on such appeal shall be the same as other variances. Such administrative variance may be granted only when it is determined that the strict application of the zoning ordinance would be detrimental to the proposed architectural character of the building and the placement of the structure on the lot would not create adverse off-site impacts.
(c) If the Development Director, or his or her designee, denies an application for a variance and the Board of Zoning Appeals denies any subsequent appeal of same, a reapplication pertaining to the same property and requesting the same variance may not be filed within one year of the date the Board of Zoning Appeals took final action on the previous application, unless the Department of Development Services initiates such reapplication or unless the Board of Mayor and Alderman authorizes such reapplication.
(D) Time limit. The Board of Zoning Appeals shall, on a periodic basis, set the dates for its future meetings and contemporaneously establish a date that shall be the last date that an application to be heard at a particular meeting must be filed (the “Deadline Date”). All applications shall be finally acted upon by the Board of Zoning Appeals within 60 days of their respective Deadline Date unless the applicant agrees that such time period may be extended.
(E) Notice of hearing. Notice to affected property owners and to the general public shall be given in conformance with the procedure set forth in § 151.308(F)(2).
(F) Standards for variances.
(1) The Board shall not grant a variance unless it makes findings based upon evidence presented to it as follows:
(a) The particular physical surroundings, shape or topographic conditions of the specific property involved would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner as distinguished from a mere inconvenience, if strict application of this chapter were carried out;
(b) The conditions upon which the petition for a variance is based would not be applicable, generally, to other property within the same zoning district;
(c) The variance will not authorize activities in a zoning district other than those permitted by this chapter;
(d) Financial returns only shall not be considered as a basis for granting a variance;
(e) The alleged difficulty or hardship has not been created by any person having an interest in the property after the effective date of this chapter;
(f) The variance is the minimum variance that will make possible the reasonable use of the land, building or structure;
(g) The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the area in which the property is located;
(h) The proposed variance will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety or substantially diminish or impair property values within the area; and
(i) The variance shall not interfere with or encroach upon a recorded public or private easement unless a written waiver has been executed by the owner of the public or private easement allowing the interference or encroachment.
(2) Sign-related variances shall be reviewed according to the standards listed in § 151.309(F)(1).
(G) Nonconformity does not constitute grounds for granting of a variance. Under no circumstances shall nonconforming uses of neighboring lands, structures or buildings in the same district, nor permitted or nonconforming use of lands, structures or buildings in other districts be considered as the basis upon which a variance is granted by the Board.
(H) Prohibition of use variances and exceptions to permitted and conditional uses. Under no circumstances shall the Board of Zoning Appeals grant a variance or conditional use (for example, special exception) to allow a use not permissible under the terms of this chapter in the zoning district involved, or any use expressly or by implication prohibited by the terms of this chapter in the zoning district.
(I) Conditions and restrictions by the Board. The Board may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the provisions of this section to reduce or minimize the injurious effect of such variation upon surrounding property and better carry out the general intent of this subchapter. The Board may establish expiration dates as a condition or as a part of the variance(s) granted.
(J) Appeal of decision of Administrative Official. In exercising its powers, the Board of Zoning Appeals may, so long as such action is in conformity with the terms of this chapter, reverse or affirm or modify, wholly or partially, the order, requirement, decision or determination before it.
(K) Appeal of decision of Board of Zoning Appeals. Any person, including any agency of the Town government, aggrieved by a decision of the Board of Zoning Appeals may appeal by certiorari to a court of competent jurisdiction. The judgment and findings of the Board on all questions of fact that may be involved in any appeal, cause, hearing or proceeding under this chapter shall be final and subject to review only for illegality or want of jurisdiction.
(L) Limitation on reapplications. If the Board of Zoning Appeals denies an application for a variance, a reapplication pertaining to the same property and requesting the same variance may not be filed within one year of the date the Board of Zoning Appeals took final action on the previous application, unless the Department of Development Services initiates such reapplication or unless the Board of Mayor and Aldermen authorizes such reapplication.
(`00 Code, § 11-1005) (Ord. passed 5- -02; Am. Ord. 2004-12, passed 7-26-04; Am. Ord. 2010-01, passed 8-23-10; Am. Ord. 2017-19, passed 10-23-17; Am. Ord. 2019-05, passed 5-13-19)