The board of adjustment shall have the power to hear requests for variances from the requirements of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes and the board of adjustment finds that there are practical difficulties in complying with the official control. The board of adjustment may impose conditions in granting of variances. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance.
"Practical difficulties" as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control, the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.
Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems and variances shall be granted for earth sheltered construction as defined in state law when in harmony with this code.
(A) The following exhibits shall be required with a variance application unless waived by the zoning officer:
1. A boundary survey or an area survey including the property in question and up to three hundred feet (300') beyond showing: topography, utilities, lot boundaries, buildings, easements and soil test data if pertinent.
2. A site development plan showing buildings, parking, loading, access, surface drainage, landscaping and utility service.
(B) Procedure for obtaining a variance from the regulations of this title are as follows:
1. The property owner or agent shall file with the zoning officer an application form together with required exhibits plus a filing fee in an amount established annually by the city council.
2. The zoning officer shall set a public hearing, transmit the application directly to the board of adjustment and mail a notice to property owners adjacent to the subject property disregarding public rights of way. Failure of such owners to receive notice shall not invalidate the proceedings.
3. The board of adjustment shall, within sixty (60) days of submittal of all required exhibits, approve, deny or approve under conditions accepted by the applicant.
(C) The board of adjustment shall not approve any variance request unless they find that "practical difficulties" as previously defined exist using the following criteria:
1. Because the particular physical surroundings, or the shape, configuration, topography, or other conditions of the specific parcel of land involved, strict adherence to the regulations of this title would cause practical difficulties. Economic consideration alone does not constitute practical difficulties.
2. That the variance would be consistent with the comprehensive plan.
3. That the variance would be in harmony with the general purposes and intent of this title.
4. The conditions upon which a variance is based are unique to the parcel of land for which the variance is sought and are not applicable, generally, to other properties within the same zoning classification.
5. The alleged difficulty or hardship is caused by this title and has not been created by any persons presently having an interest in the parcel of land.
6. The granting of the variance will not alter the essential character of the locality or be injurious to other property in the vicinity in which the parcel of land is located or substantially diminish property values.
7. The proposed variance will not substantially increase the congestion of the public streets, or increase the danger of fire, or be detrimental to the public welfare or public safety.
8. The requested variance is the minimum action required to eliminate the practical difficulties.
9. Variances may not be approved for any use that is not allowed under this title for property in the zone where the affected person's land is located except that the temporary use of a one- family dwelling as a two-family dwelling may be authorized by variance.
(D) Upon appeal of a decision by the board of adjustment, the zoning officer shall set a public hearing, transmit the application directly to the city council, and mail a notice to the board of adjustment and property owners adjacent to the subject property disregarding public rights of way. The city council shall, within sixty (60) days of the public hearing, decide to affirm or overturn the decision of the board of adjustment with a four-fifths (4/5) vote of the city council. (Ord. 011-642, 12-19-2011)