(A) Variances are designed to allow some flexibility in the zoning regulations in cases where there is an exceptional shape of a parcel of land, in cases where use of a property is overwhelmingly affected by exceptional topographic conditions, or in cases of any other extraordinary situation or condition of such a parcel of land. Variances are to be approved only when a property owner demonstrates that the provisions of all or part of these zoning regulations present an undue hardship on such property owner’s use of such parcel land. A variance shall include a description of the specific regulatory item or items in these zoning regulations which are found to produce said undue hardship. Variances shall only be granted when the Board of Adjustments finds that such relief from these zoning regulations will be neither detrimental to the public good nor in conflict with the intent of these zoning regulations. The Board of Adjustment shall follow the following procedure in considering the recommendation of the Administrative Official. A variance from the terms of this section shall not be granted by the Board of Adjustment unless and until:
(1) An application for variance, available from the Administrative Official, shall be completed by the landowner requesting the variance and shall be accompanied by any required attachments and fees as in § 155.177. The written application for a variance shall indicate the section of this chapter under which the variance is sought and stating the grounds for which it is requested. Completed applications shall be returned to the Administrative Official for review. To be considered by the Board of Adjustment, the application form shall be completed. If any of the information required by § 155.180 has changed since the original building permit application, the revised, updated, or corrected information shall accompany the application for a variance;
(2) The Administrative Official shall review the application and make a recommendation to the Board of Adjustment to either approve or not approve said application. The Administrative Official’s recommendation shall include a summary of the application and reasons and justification for either approval or disapproval of the application;
(3) The Administrative Official shall set the date, time, and place for a public hearing to be held by the Board of Adjustment. The Administrative Official shall notify the adjacent landowners, excluding streets and alleys, by mail at the expense of the applicant at least one week before the public hearing. The Administrative Official shall publish notice of the public hearing with all costs to be paid by the applicant no less than ten days prior to the public hearing in a newspaper of general circulation in the area affected by the proposed variance;
(4) A public hearing shall be held; any party may appear in person or by agent or attorney; and
(5) The Board of Adjustment shall follow the following procedure in considering the recommendation of the Administrative Official. A variance from the terms of this section shall not be granted by the Board of Adjustments unless and until a written application for a variance is submitted demonstrating:
(a) Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other land, structures, or buildings in the same district;
(b) The literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;
(c) The special conditions and circumstance do not result from the actions of the applicant; and/or
(e) Granting the variance request will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same district.
(B) Financial disadvantage of the property owner shall not constitute conclusive proof of unnecessary hardship within the purposes of zoning, and no non-conforming use of neighboring lands, structures, or buildings in the same district and no permitted or non-conforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.
(C) The Board of Adjustment shall make findings that the requirements of division (A) above have been met by the applicant for a variance.
(D) The Board of Adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of land, building, or structure.
(E) The Board of Adjustment shall further make a finding that the granting of the variance will be 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.
(F) Approval or denial of any variance shall be by a three-fourths’ majority, or four votes, of all members of the Board of Adjustment. In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under § 155.999 of this code. Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly, or implied to be, prohibited by the terms of this subchapter in said district.
(Ord. passed - - 2006) Penalty, see § 155.999