(A) Generally. The Board of Adjustment may allow a departure from the terms of these zoning regulations pertaining to height or width of structures or the size of yard and open spaces where the departure will not be contrary to the public interest, and where, owing to conditions peculiar to the property because of its size, shape, or topography, and not as a result of the action of the applicant, the literal enforcement of this chapter would deprive the owner of the reasonable use of the land and/or building involved.
(B) Application for variance. A request for variance shall be made by filing at least 21 days prior to the Board meeting an application with appropriate fees with the Zoning Administrator; the application shall be accompanied by a development plan showing such information as the Zoning Administrator may reasonably require for purposes of this chapter. The plans shall contain sufficient information for the Board to make a proper decision on the matter. The request shall state the exceptional conditions and the peculiar and practical difficulties claimed as a basis for a variance. In all cases, the application shall include:
(1) Name and address of the applicant;
(2) The legal description of the property involved in the request for variance, including the street address, if any, of the property;
(3) The names and addresses of the owners of the property and any other persons having a legal interest therein;
(4) A site plan drawn to scale showing the property dimensions, grading, landscaping, and location of utilities, as applicable;
(5) Location of all existing and proposed buildings;
(6) Drive accesses, driveways, access roads, parking spaces, off-street loading areas, and sidewalks as applicable;
(7) The variance requested and the reasons for the request;
(8) Justification, in writing, that the following exist:
(a) Special circumstances or conditions exist that are peculiar to the land or building for which the adjustment is sought and do not apply generally to land or buildings in the neighborhood and have not resulted from any act of the applicant subsequent to the adoption of this chapter;
(b) The circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of the land or building, the granting of the adjustment is necessary for the reasonable use thereof and the adjustment requested is the minimum adjustment that will accomplish this purpose; and
(c) The granting of the adjustment is in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(9) Evidence satisfactory to the Board of Adjustment of the ability and intention of the applicant to proceed with actual construction work in accordance with the plans within six months after issuance of permit.
(C) Notice of hearing. Notice of the time, date, place, and purpose of the variance hearing shall be published once in a newspaper of general circulation, published or circulated within the city and posted in a conspicuous place close to the property affected at least 15 days before the hearings, and shall be mailed at least 15 days prior to the Board meeting to each owner of property situated wholly or partially within 200 feet of the property to which the variance relates. The Zoning Administrator shall be responsible for mailing the notices. For the purpose of giving mailed notice, the Zoning Administrator shall require the applicant to furnish the names and addresses of all property owners within 200 feet of the property.
(D) Evidence required for variance. At the public hearing on a variance application, the applicant shall present a statement and adequate evidence in such form as the Board may require for the purpose of showing:
(1) There are special circumstances or conditions applicable to the property referred to in the application which do not prevail on other property in that zone;
(2) The strict application of the regulations would work an unnecessary hardship and that the granting of the application is necessary for the preservation and enjoyment of substantial existing property rights; and/or
(3) The granting of the application will not materially affect the health or safety of persons residing or working in the neighborhood and will not be materially detrimental to the public welfare or injurious to property or improvements of the neighborhood.
(E) Board of Adjustment action. In the event the Board of Adjustment can determine that substantial conformity to the standards previously established in the zone may be secured and that detriment or injury to the neighborhood will not result from the granting of a variance as applied for, it may approve or conditionally approve the issuance of the permit and transmit notice of its action to the Zoning Administrator. Approval may be granted only upon the affirmative vote of three-fourths of all members of the Board. A report of its findings and recommendations and any conditions imposed or required shall also be submitted promptly to the Planning and Zoning Commission and the City Council.
(F) Disapproved application. In the event the Board of Adjustment disapproves an application for a variance, no permit shall be issued pending further action thereon by an appeal to the superior court within 30 days from the date the disapproval is officially entered on the minutes of the Board, if the court shall overrule the action of the Board, then the Zoning Administrator shall issue the requested permit without further action by the Board unless the court orders the Board to hold a further hearing to permit the Board to fix conditions or require guarantees as set forth in divisions (G) and (H) below.
(G) Conditional approval. In approving any variance the Board of Adjustment may designate the conditions in connection therewith as will in its opinion secure substantially the objectives of the regulation or provision to which the variance is granted, to provide adequately for the maintenance of the integrity and character of the zone in which the permit is granted, and shall provide the Zoning Administrator with a copy of the same.
(H) Guarantees. Where necessary, the Board of Adjustment may require guarantees, in such form as it may deem proper under the circumstances, to ensure that the conditions designated in connection therewith are being or will be complied with. Where any condition under which a variance has been granted is violated, the variance shall cease to exist and the permit shall become null and void.
(Res. R22-05-08, passed 5-3-2022; Ord. O22-05-02, passed 5-3-2022)