A. Notice of the board's hearing of each application must be published in a newspaper of general circulation within the city once, at least fifteen (15) days prior to the hearing date.
B. The board of adjustment shall hold a public hearing on the application to gather facts and information. Persons interested in the requested variance and community development department staff may testify at the public hearing.
C. To approve a requested variance for a new building or portion thereof, the board of adjustment shall consider the following standards and find as follows:
1. The variance will not create a significant risk to the public health, safety, or general welfare;
2. The variance will not significantly reduce or impair the peaceful use of existing property or improvements in the vicinity and the zoning district in which the subject property is located; and
3. Strict compliance with the provisions of this title would create unnecessary hardship or practical difficulty.
D. In evaluating the standards in subsection C of this section, the board of adjustment may consider the following factors:
1. Special conditions and circumstances that are unique to the applicant's site, including the size of the property, unusual or extreme topography, or unusual shape of the property.
2. The height, location, or dimensions of existing structures located on the site or in the vicinity of the site.
3. Whether there is a prevalence of nonconformities in the vicinity of the site that are similar to the variance requested.
4. The subsequent imposition of zoning restrictions creating nonconforming lots or parcels, and governmental actions beyond the applicant's control.
5. Whether a literal interpretation of the provisions of this title would deprive the property owner of rights commonly enjoyed by other properties similarly situated in the same district under the terms of this title.
6. The extent to which the hardship or difficulty results from the actions of the applicant.
7. Whether granting the variance requested will confer an unreasonable special privilege to the subject property that is not available to other properties similarly located in the same zoning district.
E. A property owner who desires to reconstruct a nonconforming building or nonconforming portion of a building must apply for a variance. When reviewing the variance to reconstruct a nonconforming building, the property owner is entitled to a rebuttable presumption that the standards in subsection C of this section are met if the property owner can prove the existence of the prior nonconformity and that the nonconformity can be in compliance with building and fire codes.
F. The board of adjustment may impose conditions to minimize adverse impacts that the variance may have on the public health, safety, or general welfare. Any approval that includes conditions is subject to the terms of the conditions. Conditions stated in the approval may include, but are not limited to:
1. A time period in which the proposed structure shall be completed; and
2. Other conditions necessary to mitigate adverse effects from the variance.
G. Any variance from the maximum number of off street parking spaces, as specified in section 11-22-6 of this title, must require that a minimum of twenty percent (20%) of the parking area be landscaped in accordance with the standards in chapter 22 of this title. This landscaping is in addition to the requirements of chapter 24 of this title. The board of adjustment may also place conditions, within applicable city code provisions, on the location and permissible types of surfacing materials for off street parking and loading areas.
H. If a variance to the zero foot setback is requested in Downtown or Transitional Residential Districts, the maximum setback allowable along the primary and secondary lot line cannot exceed ten (10) ft.
(Ord. 3097, 4-7-2008; amd. Ord. 3258, 6-24-2019)