1115.10  APPROVALS BY THE APPEALS BOARD.
   (a)   Appeals Board shall review applications for the following uses and approve, approve with modifications, or deny such applications, in accordance with the Requirements and Standards for the particular use, as outlined in this UDO:
      (1)   Variances;
      (2)   Changes or Substitutions in Nonconforming Uses;
      (3)   Whenever a use is not specifically mentioned in this UDO, the Appeal Board shall make decisions of similar uses; and
         (Ord. 05-13.  Passed 11-7-05.)
      (4)   Administrative Appeals and;
      (5)     Appeals from the Historic Review Board for building(s) and structures located within the Historic Overlay District.
         (Ord. 08-08.  Passed 8-18-08.)
   (b)   Variances: A variance may be granted by the Appeals Board, allowing deviations from the height, mass, setback, parking, or other dimensional requirements established by this UDO where practical difficulties unique to the property in question prevent full compliance with such provisions and where as will not be contrary to the public interest.  Use variances are not permitted under this UDO.
      (1)   Submittal Requirements:
         A.   General Submittal Requirements: The following general requirements shall apply:
            1.   Each variance request shall include an application form, provided by the City, with the submittal;
            2.   The TRC shall make the determination as to completeness, and only complete applications shall be processed by the City;
            3.   The Zoning and Building Official may request additional supporting information that in his professional judgment is necessary to fully explain the applicant’s proposal. The applicant shall supply the requested additional information;
            4.   Legal Description of property or portion thereof;
            5.   Payment of the application fee as established by Section 1105.09;
            6.   The name(s), address(s), and telephone numbers of the applicant(s), and the property owner(s) if other than the applicant(s) with a notarized letter of authorization from the property owner; and
            7.   A list of all owners of property that are contiguous to the subject parcel or lot or that are across the street from it.  (The list shall based upon the Preble County Auditor’s current tax lists).
         B.   Specific Submittal Requirements: An application for a variance shall be accompanied by the following information: 
            1.   Location and address of property that is the subject of the variance request;
            2.   Description or nature of variance requested;
            3.   Narrative statements establishing and substantiating the justification for the variance pursuant to the Standards for Approval for Variances;
            4.   Site plans, floor plans, elevations and other drawings at a reasonable scale to convey the need for the variance, as directed by the Zoning and Building Official; and
            5.   Any other documents deemed necessary by the Zoning and Building Official.
      (2)   Standards for Approval: Unless other standards are provided in this UDO for variances from a particular set of design/development standards or regulations, the following Standards for Approval shall apply.  Approval of a variance shall only be granted if the Appeals Board finds that all of the following standards are met:
         A.   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 within the same zoning district.  (Examples of such special conditions or circumstances are: exceptional irregularity, narrowness, shallowness, or steepness of the lot, etc.);
         B.   The special conditions or circumstances that exist did not result from the actions of the applicant;
         C.   There cannot be any beneficial use of the property without the variance;
         D.   The variance is not substantial and is the minimum relief necessary to make possible the reasonable use of the land or structures;
         E.   The difficulty or reason why the applicant is seeking a variance cannot be resolved through any method other than a variance;
         F.   The essential character of the neighborhood will not be substantially altered nor will adjoining properties would suffer substantial detriment as a result of the variance;
         G.   The variance will not adversely affect the delivery of governmental services such as water, sewer, and trash pickup;
         H.   Granting the variance will be in harmony with the general purpose and intent of the zoning requirement the applicant seeks a variance from and will not otherwise be detrimental to the public’s health, safety, or welfare; and
         I.   Granting of the variance requested will not confer upon the applicant any special privilege that is denied by this UDO to other lands, structures, or buildings in the same district.
      (3)   Additional Conditions and Safeguards: In approving a request for a variance, the Appeals Board may further prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of the regulations or provisions to which the variance applies will be met.  If the applicant will not agree with such conditions, the Variance shall not be granted.
      (4)   Expiration of the Variance: Variances shall expire one (1) year from the date of approval, unless prior thereto the applicant applies for a building permit in accordance with the granted variance. There shall be no modification of any variance except upon further approval of Appeals Board. 
      (5)   Extensions: Extension of variances, without modification, may be applied for prior to the date of expiration, if the variance does not carry a prohibition against the extension.  No more than two six (6) month extensions may be granted by Appeals Board if it finds that the requested extension is consistent with the purpose, policies, and intent of the Comprehensive Development Plan and the requirements and standards of this UDO.  Requests for renewal of expired variances shall be considered to be the same as a new application for a variance and shall meet all requirements for application and review pursuant to this Section.
   (c)   Changes in Nonconforming Uses:
      (1)   Types of Changes:
         A.   Substitutions in Uses: A substitution in the nonconforming use of a building, structure or land with another nonconforming use shall only be permitted upon the approval of Appeals Board.  A substitution of a nonconforming use that proposes interior or exterior building alterations may only make such alterations upon approval by the Appeals Board.
         B.   Extensions or Enlargements: An extension or enlargement of a nonconforming use of a building, structure or land, or of a nonconforming building or structure, or extension of a nonconforming use through addition of a conforming use shall only be permitted upon approval of Appeals Board.  The use that the applicant seeks to extend or enlarge must have been in existence at the time of passage of this UDO.
      (2)    Submittal Requirements:
         A.   General Submittal Requirements: The following general requirements shall apply:
            1.   Each request for change in a nonconforming use shall include an application form, provided by the City, with the submittal;
            2.   The TRC shall make the determination as to completeness, and only complete applications shall be processed by the City;
            3.   The Zoning and Building Official may request additional supporting information that in his professional judgment is necessary to fully explain the applicant’s proposal. The applicant shall supply the requested additional information;
            4.   Legal Description of property or portion thereof;
            5.   Payment of the application fee as established by Section 1105.09;
            6.   The name(s), address(s), and telephone numbers of the applicant(s), and the property owner(s) if other than the applicant(s) with a notarized letter of authorization from the property owner; and
            7.   A list of all owners of property that are contiguous to the subject parcel or lot or that are across the street from it.  (The list shall based upon the Preble County Auditor’s current tax lists).
         B.   Specific Submittal Requirements:  The application shall include:
            1.   Address and zoning classification of the subject property;
            2.   Description of the existing and proposed use or extension;
            3.   A narrative statement indicating how the substitution or extension meets the required standards;
            4.   Extent of any proposed interior or exterior building alterations that are being requested; and
            5.   A list of the surrounding uses and zoning classification(s).
      (3)   Standards for Approval:
         A.   Substitutions: Appeals Board may approve the substitution of a nonconforming use with another if it finds the following conditions are met;
            1.   The proposed use is substantially similar to the existing nonconforming use or another permitted use under the existing zoning district classification;
            2.   The proposed use is equally or more appropriate to the zoning district in which the use is located;
            3.   The proposed use will not have no greater detrimental impact on surrounding uses or properties than the existing use it proposed it replace;
            4.   The proposed use will be designed, operated and maintained so as to minimize its impact on neighboring properties; and
            5.   The proposed use will not involve any uses, activities, processes, materials, equipment, conditions or operations that might be hazardous or unreasonably disturbing to existing or future neighboring uses, persons or property, or to the general welfare, by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
         B.   Extensions or Enlargements:  Appeals Board may approve the extennsion or enlargement of a nonconforming use if it finds the following conditions are met;
            1.   The proposed extension is reasonably necessary to allow the applicant to remain competitive with other similar uses;
            2.   The proposed extension will not constitute a nuisance to surrounding existing or future uses or to the general public;
            3.   The proposed extension will not have no greater detrimental impact on surrounding uses or properties;
            4.   The proposed extension will be designed, operated and maintained so as to minimize its impact on neighboring properties; and
            5.   The proposed extension will not involve any uses, activities, processes, materials, equipment, conditions or operations that might be hazardous or unreasonably disturbing to existing or future neighboring uses, persons or property, or to the general welfare, by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
      (4)   Additional Conditions and Safeguards: In approving a request for a change in a nonconforming use, the Appeals Board may further prescribe any conditions and safeguards that it deems necessary to ensure the public health, safety and welfare, including, but not limited to, limiting hours of operation, requiring additional parking, limiting access points to the property, or requiring a buffer yard. If the applicant will not agree with such conditions, the Change in Use shall not be granted.
   (d)   Determination of Similar Uses: When a specific use is not listed in this UDO as a permitted or Conditional Use, Appeals Board has the authority to determine whether the specific use is similar in use to any permitted or conditional use of this UDO, or whether such use is prohibited under this UDO.
      (1)   General Submittal Requirements: The following general requirements shall apply:
         A.   Each request for a determination of similar use shall include an application form, provided by the City, with the submittal;
         B.   Only complete applications shall be processed by the City. The Zoning and Building Official, or the TRC, as appropriate, shall make determination as to completeness;
         C.   The Zoning and Building Official may request additional supporting information that in his professional judgment is necessary to fully explain the applicant’s proposal. The applicant shall supply the requested additional information;
         D.   Legal description of property or portion thereof;
         E.   Payment of the application fee as established by Section 1105.09;
         F.   The name(s), address(s), and telephone numbers of the applicant(s), and the property owner(s) if other than the applicant(s) with a notarized letter of authorization from the property owner; and
         G.   A list of all owners of property that are contiguous to the subject parcel or lot or that are across the street from it.  (The list shall based upon the Preble County Auditor’s current tax lists).
      (2)   Specific Submittal Requirements:  The application shall include:
         A.   Address and zoning classification of the subject property;
         B.   Description of any existing uses on the property;
         C.   A list of the surrounding uses and zoning classification(s); and
         D.   A detailed description of the proposed use.
   (e)   Approvals by the Appeals Board:  The following outlines the procedure under which the Appeals Board decides variances, changes in nonconforming uses, and determinations of similar uses under this Section.
      (1)   Pre-application Meeting: If recommended by the Zoning and Building Official, the applicant shall meet with the TRC prior to submitting an application. The purpose of the meeting is to discuss the proposal and to provide feedback regarding applicable standards and requirements.
      (2)   Formal Application Submittal: The applicant shall submit an application meeting all of the applicable requirements of the UDO. All applications shall be submitted by the application deadline established by the City Manager.
      (3)   Review by the TRC:  Upon receipt of an application, the Zoning and Building Official shall forward the application to the TRC.  The TRC shall review the application for completeness, and if the application is incomplete, shall advise the applicant of the deficiencies and inform the applicant that no further action will be taken on the application until all necessary and required information has been provided.  If the application is deemed complete and the application fee has been paid, the TRC shall recommend to the Zoning and Building Official that the City officially accept the application.  Only complete applications will be forwarded by the TRC to the Appeals Board. 
      (4)   Preparation of Staff Report: The Zoning and Building Official shall prepare a staff report providing an analysis of the proposal and a recommendation.  The Zoning and Building Official shall consider comments from the TRC in formulating his recommendation.  The application and all supplemental information filed with the application shall be forwarded to the Appeals Board at least three (3) working days prior to the meeting at which the Board will consider the application.  At said meeting, the Zoning and Building Official shall present his report to the Appeals Board.
      (5)   Notice of Public Hearing Before Appeals Board: Upon determination that an application contains all the necessary and required information, the Zoning and Building Official shall place the application on Appeals Board’s agenda, and shall schedule a public hearing.  Notice of the hearing shall be provided at least once in one or more newspapers of general circulation in the City.  The notice shall be published at least five (5) days before the date of the hearing.  The notice shall state the time and place of the hearing.  If an application is tabled at the request of the applicant, or due to incompleteness of the application submitted by the applicant, and the public hearing postponed, the cost of mailing the required further notices shall be borne by the applicant.
      (6)   Notice to Property Owners of Public Hearing Before Appeals Board: Written notice of the public hearing shall be provided to all owners of property that are contiguous to the subject parcel or lot or that are across the street from it. The applicant shall provide to the Zoning and Building Official a list (based upon the Preble County Auditor’s current tax lists) of the owners of property that are contiguous to the subject parcel or that are across the street from it.  Such notice shall be sent by the City via regular mail, at least seven (7) days before the date of the hearing, addressed to the owners appearing on the list provided by the applicant and as verified by City staff.  If an application is tabled at the request of the applicant, or due to incompleteness of the application submitted by the applicant, and the public hearing postponed, the cost of mailing the required further notices shall be borne by the applicant.
      (7)   Action by the Appeals Board: The Appeals Board shall consider the application at its formal public meeting.  It may consider comments by staff as appropriate, any presentation by the applicant(s), and comments by interested parties.  The Appeals Board shall consider this information and render a decision at public meeting.  The Appeals Board shall approve the application as submitted, approve the application subject to additional conditions and restrictions to which the owner has agreed, or deny an application.  Its decision shall take effect immediately.  Written notice of the Appeals Board’s decision, including all conditions that may be associated with the decision, shall be transmitted to the applicant no later than ten (10) days after the date the decision was rendered.  The written notice shall also include the findings of facts the Appeals Board made in rendering its decision.
   (f)   Administrative Appeals: This Section identifies the responsibility for hearing appeals and establishes the appeals process for decisions made by the Zoning and Building Official or the City Engineer.
      (1)   Appeal of Administrative Action: Any person adversely affected by any order, requirement, decision, or determination made by the Zoning and Building Official, or City Engineer, as applicable, in the administration or enforcement of this UDO may appeal such order, requirement, decision or determination to the Appeals Board.
      (2)   Submittal Requirements:
         A.   General Submittal Requirements: The following general requirements shall apply:
            1.   An appeal application shall be on an application form provided by the City;
            2.   Only complete applications shall be processed by the City. The City Engineer, the Building Official, or the TRC, as appropriate, shall make determination as to completeness;
            3.   The City Engineer or the Building Official may request additional supporting information that in his professional judgment is necessary to fully explain the applicant’s proposal. The applicant shall supply the requested additional information;
            4.   Legal Description of property or portion thereof;
            5.   Payment of the application fee as established by Section 1105.09; and
            6.   The name(s), address(s), and telephone numbers of the applicant(s), and the property owner(s) if other than the applicant(s) with a notarized letter of authorization from the property owner.
         B.   Specific Submittal Requirements:  The Zoning and Building Official or City Engineer, as applicable, shall attach to the application for Appeal all papers constituting the record upon which the action appealed from was taken.
      (3)   Appeals: Notwithstanding any other provision of this UDO, the following outlines the appeals process and requirements for appeals to Appeals Board from an administrative decision by the Zoning and Building Official or the City Engineer:
         A.   Such appeal shall be made within twenty (20) days from the date of the action appealed from, by filing a notice of appeal with the Zoning and Building Official. 
         B.   Upon the filing of the appeal, the Zoning and Building Official shall give notice to the applicant(s) of the date of the meeting at which Appeals Board will consider the appeal.
         C.   The Appeals Board shall hear the application and either grant or deny the requested appeal.  Any party may appear in person or be represented by an agent or attorney. Written notice of Appeals Board’s decision, including all conditions that may be associated with the decision, shall be transmitted to the applicant no later than ten (10) days after the date the decision was rendered.  The written notice shall also include the findings of facts Appeals Board made in rendering its decision.
      (4)   Decision of Board: The Appeals Board may, by super-majority vote and in conformity with this section, reverse or affirm, wholly or partly, or modify, the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end may have all powers of the officer from whom the appeal is taken. 
(Ord. 05-13.  Passed 11-7-05.)