A. Purpose: The variation procedure is intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen applications of this title that create practical difficulties or particular hardships. When such difficulties or hardships are more appropriate for remedy, if at all, pursuant to other provisions of this chapter, the variation procedure is necessarily inappropriate.
B. Authority: In accordance with the procedures and standards set out in this section, the city council, the planning and zoning board, and the zoning administrator shall have the authority to grant variations from the provisions of this title, but only in those specific instances enumerated in subsections E through G of this section and then only in accordance with each of the standards enumerated in subsection H of this section.
C. Parties Entitled To Seek Variations: An application for a variation may be filed with the zoning administrator by the owner, agent of the owner, or anyone having a contractual interest in the subject property.
D. Application: Applications for a variation shall be filed in accordance with the requirements of section 12-3-1, "Applications And Hearings", of this chapter. The zoning administrator shall notify the petitioner, the planning and zoning board, and the city council as to the type of variation being requested (minor, standard, or major) and whose authority the application falls under.
E. Minor Variations (Zoning Administrator):
1. Authorized Variations: Variations from the regulations of this title may be granted by the zoning administrator only in the following instances, and then only in accordance with the standards set forth in subsection H of this section:
a. To vary any required front, side or rear yard setback provided, however, the variation shall not exceed the yard required by the applicable district regulations by more than thirty percent (30%).
b. To vary the height, type, and location of any fence provided, however, that no barb wire or electrical fence shall be permitted within any residential district.
c. Notwithstanding subsection E1a of this section, the replacement or expansion of an existing detached garage located within a residential district, or the expansion of an existing structure located within a residential district, may be approved provided, the replacement or expansion does not further encroach into the required side yard than what presently existed prior to the replacement or expansion.
d. To vary the location of accessory structures for lots that are "double frontage lots" or lots that are both "corner" and "double frontage lots" (lots at the end of a block with 3 street frontages), where the construction or installation of an accessory structure is in the area of the lot between the principal structure and the street of secondary frontage, which shall be a collector or arterial street, or shall be Jarvis Avenue or Birchwood Avenue.
e. To vary the size, location, and number of parking or driveway areas as established in subsections 12-9-6B3 and C of this title when a property improved with a residential single-family detached dwelling cannot accommodate two off street parking spaces within a garage, carport, on a surface driveway or a combination thereof. For the purposes of this subsection E.1.e, a “parking space” is a space measuring nine feet wide and 18 feet deep. No minor variation shall be issued for requests that, if granted, would result in more than two parking spaces on the property.
f. To vary the Building Design Standards for a detached single family house pursuant to section 12-3-11-D.2.a.(2) Materials For All Building Elevations of this title.
g. To vary the open storage requirements in the M-2 District pursuant to section 12-7-4.E.5.a. of this title.
h. To vary the setback of a driveway area located in a required yard for a property located within the R-1 Single Family Residential and R-2 Two Family Residential districts, or in any other district where a zoning lot is improved with a lawfully established single-family detached dwelling.
2. Procedure For Review And Decision:
a. Upon receipt of a properly completed application for a minor variation, the zoning administrator shall conduct a site plan review subject to the requirements of section 12-3-2, “Site Plan Review”, of this chapter. The zoning administrator may also: (i) hold a public hearing on the application in accordance with the requirements of section 12-3-1, “Applications And Hearings”, of this chapter pursuant to notice as prescribed by subsection 12-3- 1.C., “Notice”, of this chapter; or (ii) determine that, because of the nature of the application, the application for minor variation should be decided upon by the City Council in accordance with the procedures for a major variation as set forth in subsection G below.
b. Within fifteen (15) days of the close of the hearing, or completion of site plan review where no hearing was requested the zoning administrator shall, by written findings either approve, approve with modifications, or disapprove the application. The failure of the Zoning Administrator to act in such fifteen (15) days, or such further time to which the applicant may agree, shall be deemed to be a decision of disapproval.
c. If the application is approved or approved with modifications, the Zoning Administrator shall issue a variation permit, listing any specific conditions specified by the Administrator for approval. If the application is disapproved, the Zoning Administrator shall provide the applicant with written notification of his decision.
F. Standard Variations (Planning And Zoning Board):
1. Authorized Variations: Variations from the regulations of this title may be granted by the Planning and Zoning Board in the following instances, and then only in accordance with the standards set out in subsection H of this section:
a. To vary any required front, side or rear yard setback more than thirty percent (30%) of the yard required by the applicable district regulations.
b. To permit the improvement of a lot for a use otherwise prohibited solely because of the insufficient lot area, but in no event shall the area of the lot be less than eighty percent (80%) of the required lot area.
c. To vary the applicable off street parking or loading requirements up to but not more than thirty percent (30%) of the applicable regulations, except for multi-family buildings in R-4, Central Core Residential and C-5, Central Business Zoning Districts. All variation petitions for off street parking requirements for multi-family dwellings in R-4, Central Core Residential and C-5, Central Business Districts shall be approved by the City Council.
d. To vary the lot frontage requirements set forth in the residential districts up to but not more than thirty percent (30%) of the applicable district requirement.
e. To vary the maximum lot requirements set forth in the residential districts up to but not more than twenty percent (20%) of the applicable district requirement.
f. To vary the dimension of any sign (height, length, width, or area) up to but not more than ten percent (10%) of the corresponding dimensions normally permitted by chapter 11, "Signs", of this title.
2. Procedure For Review And Decision:
a. Action By Zoning Administrator: Upon receipt of a properly completed application for a standard variation, the Zoning Administrator shall conduct a site plan review subject to the requirements of section 12-3-2, "Site Plan Review", of this chapter. The Zoning Administrator shall forward his written report and recommendations to the Planning and Zoning Board for its review and decision.
b. Action By Planning And Zoning Board:
(1) The Planning and Zoning Board shall hold a public hearing on the application in accordance with the requirements of section 12-3-1, "Applications And Hearings", of this chapter. Notice for the public hearing shall be performed in the manner prescribed by subsection 12-3-1C, "Notice", of this chapter.
(2) Within thirty (30) days of the close of the public hearing, the Planning and Zoning Board shall in writing either approve, approve with modifications, or disapprove of the application. The failure of the Planning and Zoning Board to act in such thirty (30) days, or such further time to which the applicant may agree, shall be deemed to be a decision of disapproval.
(3) If the application is approved or approved with modifications, the Planning and Zoning Board shall instruct the Zoning Administrator to issue a variation permit, listing any specific conditions specified by the board or by the Zoning Administrator. If the application is disapproved, the board shall instruct the Zoning Administrator to provide the applicant with written notification of the board's decision.
G. Major Variations (City Council):
1. Authorized Variations: For all variations not authorized to be decided by the Zoning Administrator or the Planning and Zoning Board, or for variations that the Zoning Administrator has determined should be decided upon by the City Council rather than the Zoning Administrator, in accordance with Section 12-3-6.E.2.a, the City Council may vary any other provision of this title, but no such variations shall be made without a public hearing before the Planning and Zoning Board; provided, however, that both principal and accessory use variations are expressly prohibited.
2. Procedure For Review And Decision:
a. Action By Zoning Administrator: Upon receipt of a properly completed application for a major variance, the zoning administrator shall conduct a site plan review subject to the requirements of section 12-3-2, "Site Plan Review", of this chapter. The zoning administrator shall forward his written report and recommendations to the planning and zoning board for its review and recommendations.
b. Action By Planning And Zoning Board:
(1) The planning and zoning board shall hold a public hearing on the application in accordance with the requirements of section 12-3-1, "Applications And Hearings", of this chapter. Notice for the public hearing shall be performed in the manner prescribed by subsection 12-3-1C, "Notice", of this chapter.
(2) Within thirty (30) days of the close of the public hearing, the planning and zoning board shall forward its recommendation of either approval, approval with modifications, or disapproval in writing to the city council.
c. Action By City Council:
(1) The city council shall consider the application at its next available scheduled public meeting, and shall schedule a hearing if, in the opinion of the mayor, city manager or by written call by three (3) of the aldermen, it appears necessary and shall either approve, approve with modifications, or disapprove of the application. The failure of the city council to act at such time, or such further time to which the applicant may agree, shall be deemed to be a decision of disapproval.
(2) If the application is approved or approved with modifications, the zoning administrator shall issue a variation permit, listing any specific conditions specified by the council or the planning and zoning board. If the application is disapproved, the city council shall instruct the zoning administrator to provide the applicant with written notification of the council's decision.
H. Findings Of Fact For Variations: A variation from the terms of this title shall not be granted unless the reviewing authority makes specific written findings of fact directly based on the standards and conditions imposed by this section and any conditions imposed by the reviewing authority, to the extent each may be applicable.
1. Hardship: No variation shall be granted pursuant to this subsection H unless the applicant shall establish that carrying out the strict letter of the provisions of this title would create a particular hardship or a practical difficulty.
2. Unique Physical Condition: The subject lot is exceptional as compared to other lots subject to the same provision by reason of a unique physical condition, including presence of an existing use, structure, or sign, whether conforming or nonconforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject lot that amount to more than a mere inconvenience to the owner and that relate to or arise out of the lot rather than the personal situation of the current owner of the lot.
3. Not Self-Created: The aforesaid unique physical condition is not the result of any action or inaction of the owner or its predecessors in title and existed at the time of the enactment of the provisions from which a variance is sought or was created by natural forces or was the result of governmental action, other than the adoption of this title.
4. Denied Substantial Rights: The carrying out of the strict letter of the provision from which a variance is sought would deprive the owner of the subject lot of substantial rights commonly enjoyed by owners of other lots subject to the same provision.
5. Not Merely Special Privilege: The alleged hardship or difficulty is neither merely the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision, nor merely the inability of the owner to make more money from the use of the subject lot.
6. Title And Plan Purposes: The variation would not result in a use or development of the subject lot that would be not in harmony with the general and specific purposes for which this title and the provision from which a variation is sought were enacted or the general purpose and intent of the comprehensive plan.
7. No Other Remedy: There is no means other than the requested variation by which the alleged hardship or difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject lot.
8. Minimum Required: The requested variation is the minimum measure of relief necessary to alleviate the alleged hardship or difficulty presented by the strict application of this title.
I. Variation Less Than Requested: The reviewing authority may grant variations less than or different from that requested when the record supports the applicant's right to some relief but not to the entire relief requested.
J. Conditions On Variations: The reviewing authority may impose such specific conditions and limitations concerning use, construction, character, location, landscaping, screening, and other matters relating to the purposes and objectives of this title upon any lot benefited by a variation as may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the subject lot or upon public facilities and services. Such conditions shall be expressly set forth in the ordinance or order granting the variation. Violation of any such condition or limitation shall be a violation of this title and shall constitute grounds for revocation of the variation.
K. Effect Of Grant Of Variation: The grant of a variation shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approvals that may be required by this title or other ordinances of the city.
L. Limitations On Variations:
1. Subject to an extension of time granted by the zoning administrator, no variation from the provisions of this title shall be valid for a period longer than twelve (12) months unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion or unless a certificate of occupancy is issued and a use is commenced within that period.
2. A variation shall be deemed to authorize only the particular construction or development for which it was issued and shall automatically expire and cease to be of any force or effect if such construction or development is beyond the scope so authorized. (Ord. Z-8-98, 9-21-1998; amd. Ord. Z-7-04, 1-19-2004; Ord. Z-8-14, 4-7-2014; Ord. Z-14-15, 7-6-2015; Ord. Z-29-15, 10-5-2015; Ord. Z-31-18, 10-15-2018; Ord. Z-18-19, 8-5-2019; Ord. Z-3-20, 1-6-2020
; Ord. Z-20-22, 8-1-2022; Ord. Z-5-23, 2-21-2023
)