A. Authority: The village council, in accordance with the procedures and standards set out in this section and by ordinance duly adopted, shall have the authority to grant variations from the provisions of this title, but only in those specific instances enumerated in subsection E of this section and then only in accordance with each of the standards enumerated in subsection F of this section.
B. Purpose: The variation procedure is intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this title that create practical difficulties or particular hardship. When such difficulties or hardships are more appropriate for remedy, if at all, pursuant to other provisions of this chapter, the variation procedure is necessarily inappropriate.
C. Parties Entitled To Seek Variations: Applications for variations may be filed by the owner of, or person having a contractual interest in, the subject property, if authorized by the owner in writing.
D. Procedures:
1. Application: Applications for variations shall be filed in accordance with the requirements of section 9-10-8 of this chapter.
2. Public Hearing: A public hearing shall be set, noticed, and conducted by the Planning and Zoning Commission in accordance with subsection 9-10-4C of this chapter.
3. Action By Planning and Zoning Commission: Within sixty (60) days after the conclusion of the public hearing, the Planning and Zoning Commission shall render a written recommendation to the village council, recommending either granting the application for a variation; granting the application with conditions; granting a variation less than or different from that sought in the application; or denying the application. The failure of the Planning and Zoning Commission to act within sixty (60) days, or such further time to which the applicant may agree, shall be deemed a recommendation for the denial of the variation.
4. Action By Zoning Administrator: Within thirty (30) days after the conclusion of the public hearing held by the Zoning Administrator, the Zoning Administrator shall render a written recommendation to the village council either granting the application for a variation; granting the application with conditions; granting a variation less than or different from that sought in the application; or denying the application. The failure of the Zoning Administrator to act within thirty (30) days, or such further time to which the applicant may agree, shall be deemed a recommendation for the denial of the variation.
5. Action By Village Council: Within forty five (45) days after the receipt of the recommendation of the Planning and Zoning Commission or the Zoning Administrator, or their failure to act as above provided, the village council shall either deny the application or, by ordinance duly adopted, shall grant the variation with or without modification or conditions. The failure of the village council to act within such forty five (45) days, or such further time to which the applicant may agree, shall be deemed a decision denying the variation.
E. Authorized Variations:
1. Permitted Variations: Subject to the prohibitions set forth in subsection E2 of this section, and subject to the other provisions of this section, the Village Council may vary the provisions of this Code in the following cases and in no others. Nothing in this subsection shall be construed to create any right or entitlement in any applicant to a variation of any kind or magnitude:
a. To reduce the dimension of any required yard, setback or building spacing, including, without limitation, the yards required pursuant to this title.
b. To reduce the required lot dimensions including minimum lot width or minimum lot area.
c. To increase by not more than twenty percent (20%) the maximum allowable building coverage or lot coverage.
d. To vary the location and size of, and to reduce by not more than twenty five percent (25%) or one space (whichever is greater) the minimum number of, off street parking spaces or loading spaces otherwise required.
e. To vary the number of parking or loading spaces required in connection with a change of use or an increase in use intensity.
f. To increase the maximum distance that required parking is permitted to be located from the zoning lot of the use for which such parking is provided.
g. To reduce by not more than fifty percent (50%) the amount of perimeter landscaped open space otherwise required.
h. To increase the maximum allowable height and location of any fence.
i. To allow the moving of a nonconforming structure to an extent or in a manner not permitted by chapter 9 of this title.
j. To allow the otherwise prohibited restoration of a partially damaged or destroyed nonconforming structure, structure devoted to a nonconforming use, sign or fence.
k. To vary the bulk, yard, and space requirements when a zoning lot, whether vacant or legally used, is reduced in size, by reason of the exercise of the right of eminent domain by an authorized government body or by reason of a conveyance made under the specific threat of an eminent domain proceeding, so that the remainder of said zoning lot, or any structure or use on said zoning lot, does not conform with one or more of such bulk, yard or space requirements of the district in which said zoning lot is located.
l. To reduce the minimum dwelling unit square footage from eight hundred (800) to not less than six hundred (600) square feet in the downtown business district.
2. Prohibited Variations: Notwithstanding any other provision of this section, no variation shall be granted that is greater than the minimum variation necessary to relieve the particular hardship or practical difficulty demonstrated by the applicant.
F. Standards For Variations:
1. General Standard: No variation shall be granted pursuant to this section unless the applicant shall establish that carrying out the strict letter of the provisions of this title would create a particular hardship or a practical difficulty. Such a showing shall require proof that the variation being sought satisfies each of the standards set forth in this subsection.
2. Unique Physical Condition: The subject property is exceptional as compared to other lots subject to the same provision by reason of a unique physical condition, including presence of an existing use, structure or sign, whether conforming or nonconforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject property that amount to more than a mere inconvenience to the owner and that relate to or arise out of the lot rather than the personal situation of the current owner of the lot.
3. Not Self-Created: The aforesaid unique physical condition is not the result of any action or inaction of the owner or its predecessors in title and existed at the time of the enactment of the provisions from which a variation is sought or was created by natural forces or was the result of governmental action, other than the adoption of this title, for which no compensation was paid.
4. Denied Substantial Rights: The carrying out of the strict letter of the provision from which a variation is sought would deprive the owner of the subject property of substantial rights commonly enjoyed by owners of other lots subject to the same provision.
5. Special Privilege: The alleged hardship or difficulty is not merely the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision, nor merely an inability to make more money from the use of the subject property; provided, however, that where the standards herein set out exist, the existence of an economic hardship shall not be a prerequisite to the granting of an authorized variation.
6. Title And Plan Purposes: The variation would not result in a use or development of the subject property that would not be in harmony with the general and specific purposes for which this title and the provision from which a variation is sought were enacted or the general purpose and intent of the official comprehensive plan.
7. Essential Character Of Area: The variation would not result in a use or development on the subject property that:
a. Would be materially detrimental to the public welfare or materially injurious to the enjoyment, use, development or value of property or improvements permitted in the vicinity; or
b. Would materially impair an adequate supply of light and air to the properties and improvements in the vicinity; or
c. Would substantially increase congestion in the public streets due to traffic or parking; or
d. Would unduly increase the danger of flood or fire; or
e. Would unduly tax public utilities and facilities in the area; or
f. Would endanger the public health or safety.
8. No Other Remedy: There is no means other than the requested variation by which the alleged hardship or difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject property.
G. Variation Less Than Requested: A variation less than or different from that requested may be granted when the record supports the applicant's right to some relief but not to the relief requested.
H. Conditions On Variations: The village council may impose such specific conditions and limitations concerning use, construction, character, location, landscaping, screening and other matters relating to the purposes and objectives of this title upon the premises benefited by a variation as may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the subject property or upon public facilities and services. Such conditions shall be expressly set forth in the resolution granting the variation. Violation of any such condition or limitation shall be a violation of this title and shall constitute grounds for revocation of the variation.
I. Affidavit Of Compliance With Conditions; Fee: Whenever any variation authorized pursuant to this section is made subject to conditions and limitations to be met by the applicant, the applicant shall, upon meeting such conditions, file an affidavit with the director of public health and safety so stating. Such affidavit shall be accompanied by a nonrefundable fee, to be fixed in each case by the director of public health and safety, to recover the village's actual direct cost of an inspection to verify that such conditions and limitations have been met.
J. Effect Of Grant Of Variation: The grant of a variation shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for any permits and approval that may be required by the codes and ordinances of the village including, but not limited to, a building permit, a certificate of zoning compliance, subdivision approval and site plan approval.
K. Limitations On Variations: No variation from the provisions of this title shall be valid for a period longer than one year unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion or unless a certificate of zoning compliance is issued and a use is commenced within that period.
A variation shall be deemed to authorize only the particular construction or development for which it was issued and shall automatically expire and cease to be of any force or effect if such construction or development shall be removed and not replaced within six (6) months after such removal. (Ord. O-17-97, 12-8-1997; amd. Ord. O-68-05, 12-19-2005; Ord. O-50-07, 11-13-2007; Ord. O-7-10, 2-8-2010; Ord. O-16-17, 6-12-2017; Ord. O-28-19, 8-26-2019; Ord. O-20-22, 5-9-2022; Ord. O-10-23, 2-27-2023)