(1) Purpose. A variance from the requirements of this Code may be granted by the BZA, or in limited cases by the PZC, where the applicable board determines that such a variance will not be contrary to the public intent and where due to special conditions and practical difficulties with strict application of this Code may exist.
(2) Initiation. Pursuant to § 157.047(1), any person having authority to file applications may initiate an application for a variance.
(3) Procedure.
(A) Step 1 - application for a variance. An application for a variance shall comply with the provisions of § 157.047.
(B) Step 2 - variance application review.
1.) The Zoning Division shall process the variance request upon its denial of a zoning permit.
2.) The Planning Department (variances requested during the subdivision process or as part of a floodplain permit) shall review the variance request and make a recommendation to the PZC to approve, approve with conditions or deny the request. The Planning Department may also recommend the continuance of the matter to allow for further review.
(C) Step 3 - BZA or PZC hearing and decision on a variance.
1.) The BZA or the PZC shall hold a public hearing within 45 days of the filing of the variance application; provided adequate notification is provided pursuant to § 157.047(7).
2.) Within 45 days of the public hearing, the BZA or PZC shall either approve, approve with conditions or deny the request for a variance.
3.) The BZA or PZC shall further make a finding, in writing, that the reasons set forth in the application justify the granting or denial of the variance.
4.) The BZA or PZC may amend the variance application, with approval from the applicant, as part of the motion. However, such amendment shall not create a larger nonconformity or larger variance published as part of the notification requirements.
5.) In approving a variance, the BZA or PZC may further prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of the provisions to which the variance applies will be met and completed. Any violation of such conditions and safeguards, when they have been made a part of the terms under which the variance has been granted, shall be deemed a punishable violation under this Code.
(4) Basis for granting a variance. In order to grant a variance, the BZA or PZC shall use the following review criteria:
(A) 1.) The BZA or PZC shall not grant a variance, as authorized in this Code, unless it can determine that there are circumstances, conditions and practical difficulties encountered by the applicant in complying with the provisions of this Code. This evaluation shall include, but is not limited to, the following criteria:
a.) Whether the property will yield a reasonable return without the variance or whether there can beneficial use of the property;
b.) Whether the variance is substantial;
c.) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
d.) Whether the variance would adversely affect the delivery of governmental services;
e.) Whether the property owner purchased the property with knowledge of the zoning restrictions;
f.) Whether the problem can feasibly be addressed through some method other than variance (e.g., zone change); and
g.) Whether the variance preserves the spirit and the intent behind the purpose of this Code and whether substantial justice would be done by granting the variance.
2.) No single factor listed above shall control, and not all factors shall be applicable in each case. Each case shall be determined on its own facts.
(B) To obtain a variance, the applicant must show practical difficulty, by demonstrating:
1.) Whether strict compliance with area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity unnecessarily burdensome;
2.) Whether a variance would do substantial justice to the applicant, as well as to other property owners in the district, or whether a lesser relaxation would give substantial relief and be more consistent with justice to others;
3.) Whether the plight of the owner is due to unique circumstances of the property; and
4.) Whether the problem is self-created.
(C) Variances shall not be granted on the grounds of convenience or profit.
(D) The BZA shall not consider or grant a use variance when the use is otherwise prohibited in the zoning district in which the property is located. In such cases, the applicant may submit a request for a zoning map amendment pursuant to § 157.048 in order to accommodate the proposed use.
(E) The fact that a structure, use or lot does not conform to this Code prior to the consideration of a variance application may not be used as a basis for the granting of a variance.
(5) Effect of a variance.
(A) The issuance of a variance shall authorize only the particular variation that is approved in the variance.
(B) A variance, including any conditions, shall run with the land and shall not be affected by a change in ownership.
(6) Subsequent development. Development authorized by the variance shall not be carried out until the applicant has secured all other approvals required by this Code or any other applicable provisions of the city. A variance shall not ensure that the development with an approved variance shall receive subsequent approval for other applications for development approval, unless the relevant and applicable portions of this Code or other applicable provisions are met.
(7) Time limit. No variance shall be valid for a period longer than 12 months of the date of variance approval, unless the applicant receives approval of a zoning permit.
(8) Amendment of a variance after a decision. When an amendment is requested that would increase the extent or severity of the variance, the variance shall be amended, extended or modified only in accordance with the procedures and standards established for its original approval. An amendment that reduces the extent or severity of the approved variance may be approved by the Planning Director (for example, if the original variance grants a ten-foot variance on a 20-foot setback, the Planning Director may approve an amendment if the applicant only needs a five-foot variance).
(9) Appeals of BZA decisions. Those aggrieved by the decision of the BZA or any taxpayer, may appeal such decision to the County Court of Common Pleas, as provided in R.C. Ch. 2506.
(Prior Code, § 1224.10) (Ord. 2009-21, passed 10-27-2009)