(A) Purpose. The “variance” process is intended to provide limited relief from the requirements of this chapter in those cases where strict application of those requirements will create a practical difficulty or particular hardship prohibiting the use of land in a manner otherwise allowed under this chapter. It is not intended that variances be granted merely to remove inconveniences or financial burdens that the requirements of this chapter may impose on property owners in general. Rather, it is intended to provide relief where the requirements of this chapter render the land difficult to use because of some unique physical attribute of the property itself or some other factor unique to the property for which the variance is requested. In no event, however, shall the city grant a variance which would allow the establishment of a use which is not otherwise allowed in a zoning district or which would change the zoning district classification of any or all of the affected property.
(B) Authorized variances. Variances from the regulations of this chapter may be decided by the Planning and Zoning Commission only in accordance with the standards set forth in this division (B):
(1) To permit a setback less than the setback required by the applicable regulations, the reduction shall not exceed 30%;
(2) To permit the use of a lot of record on the effective date hereof for a use otherwise prohibited solely because of the insufficient area of the lot;
(3) To reduce by not more than 30% the required lot width;
(4) To permit the same off-street parking spaces to qualify as required spaces for two or more uses; provided that the maximum use of the facility by each user does not take place during the same hours;
(5) To increase by not more than 25% the maximum distance that required parking spaces are permitted to be located from the use served;
(7) Hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Director of Community Development, City Engineer or his or her designee, in the enforcement of this chapter;
(8) To vary fence regulations where the variance will benefit the applicant and will not be detrimental to the public health or safety or to the use, enjoyment or value of the property in the near vicinity;
(9)
To vary the outdoor lighting regulations as detailed in § 152.032;
(11) To vary other provisions of this chapter.
(C) Standards for granting variances.
(1) The Planning and Zoning Commission shall not vary the provisions of this chapter as authorized in this section unless it shall have made affirmative findings based upon the evidence presented to it in each of the following specific cases:
(a) That the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which it is located. Applicants must submit evidence identifying the price paid for the property. Paying more for the property than it is worth, purchasing it at a price which anticipates and obtains variances, or showing that the property would be worth more if a variance is granted is not evidence of lack of a reasonable return;
(b) That the situation of the owner is due to unique physical circumstances of the property; and
(c) That the variance, if granted, will not alter the essential character of the neighborhood.
(2) For the purpose of supplementing the above standards, the Planning and Zoning Commission, in making this determination whenever there are practical difficulties or particular hardships, shall also take into consideration the extent to which the following facts, favorable to the applicant, have been established by the evidence:
(a) That the particular physical surroundings, shape or topographical conditions of the specific property involved would bring a particular hardship upon the owner as distinguished from a mere inconvenience if the strict letter of the regulation were to be carried out;
(b) That the conditions upon which the petition for variance is based would not be applicable generally to other property within the same zoning classification;
(c) That the purpose of the variance is not based exclusively upon a desire to make more money out of the property;
(d) That the alleged difficulty or hardship has not been created by any person presently having an interest in the property;
(e) That the granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located; and
(f) That the proposed variance will not impair an adequate supply of light and air to adjacent property, substantially increase the danger of fire, otherwise endanger the public safety, or substantially diminish or impair property values within the neighborhood.
(3) The Planning and Zoning Commission may require conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards set forth in this division (C) to reduce or minimize the injurious effect of the variance upon other property in the neighborhood, and to implement the general purpose and intent of this chapter.
(D) Time limitations. The following time limitations shall apply to variances issued by the Commission.
(1) In cases where the use authorized by a variance requires a building variance, the applicant shall have three months from the date the variance is granted to apply for a building variance. If application has not been made within that time, the variance shall expire and become null and void.
(2) In cases where a building permit is not required, any construction or activity authorized or required pursuant to the variance must commence within three months from the date the variance is granted. In the event the construction or activity is either not commenced within the three-month period, the variance shall expire and become null and void.
(3) Any other time restrictions as detailed in the conditions placed on the variance.
(E) Application for variance, notice of hearing.
(1) Who may file. Variance applications may be made by any property owner or his or her agent.
(2) Fees. Before any action shall be taken as provided in this section, the party or parties proposing the variance shall pay fees established by ordinance (see Fee Schedule). Under no condition shall the sum or any part thereof be refunded for failure of the request to be allowed by the Council. At their discretion, the City Council may waive fees for internal projects.
(3) Application. Applications for a variance shall be accompanied by 15 sets of the proposed site plan (see § 152.134 for plan requirements). In addition, any other information as shall be established from time to time by the Planning and Zoning Commission shall be submitted to the Director of Community Development or his or her designee.
Figure 152.019: Variance Process
(4) Prerequisites. No application for a variance shall be acted upon by the Planning and Zoning Commission until after:
(a) Copies of the application and all supporting materials are distributed to and reviewed by the Development Review Committee. The Development Review Committee shall submit written comments to the Planning and Zoning Commission and the applicant prior to the public hearing.
(b) A public hearing has been held by the Planning and Zoning Commission, which is required by state statute. Notice of the public hearing shall be published in the local newspaper not less than 15 days prior to the public hearing.
1. Not less than ten days prior to the date of the public hearing, the Building Inspector shall post a readable sign(s) on the premises. Sign(s) must be removed no later than ten days after a recommendation is made by the Planning and Zoning Commission. The sign(s) must be visible from the roadway.
2. With each decision, the Planning and Zoning Commission shall prepare a Findings of Fact based on evidence presented to it.
(F) Decisions by Planning and Zoning Commission. All decisions of the Planning and Zoning Commission on variances, shall require a majority vote of all members.
(G) Appeals of Planning and Zoning Commission decision to City Council. An applicant for a variance may appeal the Planning and Zoning Commission’s action to the City Council. The procedure for making an appeal is as follows:
(1) A written notice of appeal must be filed with the Director of Community Development or his or her designee within 15 days from the date of the Planning and Zoning Commission’s action.
(2) The appeal shall be considered by the City Council at its next regularly scheduled meeting occurring not less than five days following the filing of the notice of appeal. The City Council may, in its discretion, uphold, overturn or amend the action taken by the Planning and Zoning Commission.
(3) If the applicant fails to submit the written notice of appeal within the 15-day appeal period, the Planning and Zoning Commission’s decision shall be final.
(Ord. 10-3277, § 1-2.5, passed 1-4-2010; Ord. 12-3343, passed 1-23-2012; Ord. 14-3444, passed 4-21-2014; Ord. 15-3505, passed 11-16-2015; Ord. 17-3538, passed 2-6-2017; Ord. 20-3609, passed 4-6-2020; Ord. 20-3625, passed 12-21-2020)