(A) Intent. Zoning variances (sometimes referred to as variations) are intended as a way to provide relief from practical difficulties or unnecessary hardships resulting from strict application of zoning chapter requirements.
(B) Applicability; authorized variances. The Village Board is authorized to grant a variance to any regulation in this zoning chapter in accordance with the variance procedures of this section, except that the variance procedures may not be used to:
(1) Permit a principal use in a zoning district that is not otherwise allowed in that zoning district (i.e., “use variances” are prohibited);
(2) Waive, modify or amend any definition or use classification;
(3) Waive, modify or otherwise vary any of the review and approval procedures;
(4) Waive, vary, modify or otherwise override a condition of approval or requirement imposed by an authorized decision-making body or the state or federal government; or
(5) Waive, vary or modify applicable “minimum lot area per unit” (density) standards (Note: this provision is not intended to prohibit variances of minimum lot area requirements for individual lots).
(C) Authority to file. Variance applications may be filed by any person, firm, or corporation having a freehold interest, a possessory interest entitled to exclusive possession, or any exclusive possessory interest that is specifically enforceable on the property that is the subject of the proposed variance. Applications may be filed by the property owner (described above) or by the owner’s authorized agent.
(D) Application filing. Complete applications for variances must be filed with the Zoning Administrator. A separate application must be made for each noncontiguous parcel of land.
(E) Review and report — Zoning Administrator. The Zoning Administrator must prepare a report and recommendation that evaluates the proposed variance in light of the standards of division (I) of this section. The report must be transmitted to the Planning and Zoning Commission before their public hearing on the proposed variance.
(F) Notice of hearing.
(1) Newspaper notice. Notice of the Planning and Zoning Commission’s required public hearing on a variance must be published in the newspaper in accordance with § 151.202(D)(5).
(2) Delivered notice. Notice of the Planning and Zoning Commission’s required public hearing must be delivered to the subject property owner and all owners of property in accordance with § 151.202(D)(4).
(G) Hearing and recommendation — Planning and Zoning Commission.
(1) The Planning and Zoning Commission must hold a public hearing to consider the variance request.
(2) Following the close of the hearing, the Planning and Zoning Commission must act by simple majority vote to recommend that the proposed variance be approved, approved with modifications and/or conditions, or denied and transmit its findings and recommendations to the Village Board.
(H) Final action — Village Board.
(1) Upon receipt of the Planning and Zoning Commission’s findings and recommendation, the Village Board may act to approve the proposed variance application, approve the variance with conditions and/or modifications or deny the variance. The Village Board may also return the application to the Planning and Zoning Commission for further consideration, together with a written explanation of the reasons for doing so.
(2) The Village Board is authorized to impose such conditions and restrictions upon the premises benefitted by a variance as the Board determines to be necessary to ensure compliance with the standards of division (I) of this section, to reduce or minimize the effect of the variance upon other properties in the area, and to better carry out the general public and intent of this zoning chapter.
(3) The Village Board may act by a simple majority vote of the entire Village Board.
(4) If no action is taken by the Village Board within 6 months after receipt of the report of the Planning and Zoning Commission, the application is deemed to have been denied.
(I) Standards and review criteria.
(1) No variance may be recommended for approval or approved unless the Planning and Zoning Commission makes both of the following findings based upon the evidence presented:
(a) That the plight of the owner is due to unique circumstances; and
(b) That the variance, if granted, will not alter the essential character of the locality.
(2) For the purpose of supplementing the 2 preceding standards for recommendation for approval, the Planning and Zoning Commission must also weigh and consider the extent to which the following facts, favorable to the applicant, have been established by the evidence presented:
(a) That the particular physical surroundings, shape, or topographical conditions of the subject property results in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out;
(b) That the conditions upon which the variance application is based would not be applicable generally to other property within the same zoning classification;
(c) That the purpose of the variance is not based exclusively upon a desire to make more money out of the property;
(d) That the alleged difficulty or hardship was not created by any person presently having an interest in the property;
(e) That the granting of the variance will not be detrimental to the public welfare or unduly injurious to other property or improvements in the neighborhood in which the property is located; and
(f) That the proposed variance will not impair an adequate supply of air to adjacent property, or substantially increase the danger of fire, or otherwise endanger the public safety, or substantially diminish or impair property values within the neighborhood.
(J) Transferability. Approved variances run with the land and are not affected by changes of tenancy, ownership, or management.
(K) Amendments. A request for changes in conditions of approval of variance must be processed as a variance application, including the requirements for fees and notices.
(L) Lapse of approval.
(1) An approved variance will lapse and have no further effect 1 year after it is approved by the Village Board, unless:
(a) A building permit has been issued (if required); or
(b) The use or structure has been lawfully established.
(2) The Village Board is authorized to extend the expiration period for good cause on up to 2 separate occasions, by up to 180 days each. Requests for extensions must be submitted to the Zoning Administrator before the variance expires. No hearings, notices or fees are required for extensions.
(3) A variance also lapses upon revocation of a building permit for violations of conditions of approval or upon expiration of a building permit to carry out the work authorized by the variance.
(M) Successive applications. In the event that a variance application is denied, no application may be approved for substantially the same variance on substantially the same site for 12 months from the date of denial by the Village Board, unless the Village Board determines that conditions in the area have substantially changed.
(Ord. 2015-08, § 14.07, passed 6-23-2015)