(A) Applicability. The purpose of a variance is to allow certain deviations from the standards of this chapter (such as yard setback or similar numeric standards), when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
(B) Application requirements. All applications for a variance shall be submitted in accordance with § 154.036, Common Review Procedures.
(C) Notice and evidentiary hearings.
(2) The Board of Adjustment shall fix a date for hearing the variance request, to be held within 45 days of the date a complete application was submitted, giving notice to the applicant by certified mail.
(D) Burden of proof. The applicant seeking the variance shall have the burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth below as well as the burden of persuasion on those issues.
(E) Action by the Zoning Administrator. The Zoning Administrator shall provide the Board of Adjustment with a copy of the application and all relevant materials pertaining to the request.
(F) Action by the Board of Adjustment.
(2) The concurring vote of four-fifths of the Board of Adjustment shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this division, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter under § 154.024 shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
(F) Findings of fact.
(1) When unnecessary hardships would result from carrying out the strict letter of a requirement of this chapter, the Board of Adjustment shall vary the requirement of this chapter upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the requirement. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(b) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
(c) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
(d) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
(2) No change in permitted uses may be authorized by variance.
(H) Conditions. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Conditions may be imposed by the Board of Adjustment regarding the location, character, and other features of the proposed building or use as may be deemed by the Board of Adjustment to protect property values and general welfare of the area. Nonconformance with such conditions and safeguards, when part of the terms under which the variance is granted, shall be deemed a violation of this chapter.
(I) Reapplication of variance request. The Board of Adjustment shall not hear an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the application.
(J) Subsequent development. Development authorized by the variance shall not be carried out until the applicant has secured all other permits required by this chapter. A variance does not ensure that the use shall receive subsequent approval for other applications for permit approval unless the relevant and applicable portions of this chapter are met.
(K) Variance runs with the land. Pursuant to § 154.004(A), variance is not a personal right, but runs perpetually with the land.
(L) Decisions and notice. The decision of the Board of Adjustment and notice of same shall be made in accordance with the provisions of § 154.024(J).
(M) Appeals. All appeals from a decision of the Board of Adjustment shall follow the process and procedure set forth in § 154.042(F).
(Ord. passed 6-21-21)