1. Purpose. The Board, upon appeal in specific cases and after a public hearing, may vary the regulations of this Code in harmony with their general purpose and intent where the Board makes findings of fact in accordance with the standards hereinafter prescribed, and further, finds that there are practical difficulties or unnecessary hardships in the way of carrying out the liberal provisions of this Code.
2. Application For Variance and Notice of Hearing. An application for a variance shall be filed, in writing, with the Zoning Administrator. The application shall be in the number of copies and contain such information as the Board may, by rule, require. The Board shall reach its decision within 45 days from the date of the hearing unless such time is extended by mutual consent of the petitioner and the Board.
3. Public Hearing Notice. The Board shall set a public hearing for the application and shall publish notice of time and place of the hearing, in a publication of general circulation within the City of Hiawatha, not less than four days nor more than 20 days before the date of such hearing.
4. Notification Signs. The Zoning Administrator shall provide each applicant for a variance with at least two notification signs which shall be clearly posted by the applicant on the subject property. On a larger property additional such signs may be required. At least one sign shall be placed so that it is clearly visible from an abutting street, and if the subject property has frontage on more than one street, a sign shall be posted on each such frontage. When a property has little or no direct street frontage, additional signs may be required to be posted adjacent to and facing the surrounding properties. For each sign provided, the applicant shall pay a fee in an amount established from time to time by the City Council by resolution.
A. Sign Content. The notification signs shall indicate the zoning district classification and the nature of the requested variance, and the date, time and meeting place of the Board of Adjustment.
B. Time of Sign Posting. The notification signs shall be posted at least seven days prior to the meeting of the Board of Adjustment and shall be maintained continuously on the property until after the public hearing of the Board.
C. Failure to Post Sign. Failure to post and maintain such notices as prescribed above may be considered by the Board as sufficient cause to defer the hearing on the application.
D. Sign Removal. Such signs shall be removed by the applicant within five days after the public hearing. No person other than the applicant or his agent shall erect, remove or alter such signs. No one shall deface nor in any way affect the visibility or interfere with such signs.
5. Notification Letters. A list of all owners of property located within 200 feet of the lot on which a variance is being requested shall be furnished in writing to the Zoning Administrator at the time of application for a variance. The names and addresses of each property owner shall be as shown by the records of the County Auditor. However, if the property is shown to be in the name of more than one owner, a single notice shall be mailed to all owners at the address of record. Notice shall be sent by certified mail by the City Clerk’s office so that the notice will be received not less than four (4) nor more than 20 days prior to the scheduled Board of Adjustment hearing on the variance requested. Failure to receive a mailed notice shall not invalidate the proceedings nor constitute a defense to a proposed variance.
6. Standards for Variances. The Board shall not grant a variance unless it shall make findings based upon the evidence submitted in each specific case that a special condition or conditions exist to the degree that a literal enforcement of the provisions of the Code will result in an unnecessary hardship, and that granting such variance will not be contrary to the public interest nor to the spirit and intent of this Code. At a minimum, all the following findings shall be made in order to justify granting of a variance.
A. Unique Circumstances. The subject property is unique or exceptional as compared to other properties subject to the same provisions by reason of irregularity, narrowness, shallowness, or substandard or marginal size; exceptional topographical features; or other extraordinary conditions peculiar to and inherent in the property in question and which relate to or arise out of the property rather than the personal situation of the current owner of the property; and which amount to more than a mere inconvenience to the owner.
B. Not Exclusively For Financial Gain. The purpose of the variance is not based exclusively upon a desire to increase financial gain from the property. Proof that the property cannot be used for its highest or best use under the regulations, shall not in itself justify granting a variance.
C. Hardship Not Self-Created. The aforesaid unique or special condition existed at the time of the enactment of the provisions of this Code which affect it or was the result of government action, other than adoption of this Code, for which no compensation was paid, and has not been created by any persons presently having an interest in the property.
D. Substantial Rights Denied. The carrying out of the strict letter of the provisions would deprive the property owners of substantial rights commonly enjoyed by other property owners subject to the same provisions.
E. Not Special Privilege. The hardship 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 property subject to the same provisions.
F. Not Detrimental. Granting the variance will not be detrimental to the public welfare or materially injurious to the enjoyment, use or development of property in the vicinity, and would not materially impair an adequate supply of light and air to adjacent properties; would not substantially increase congestion in the public streets, nor increase the danger of flood or fire, or endanger the public safety, nor substantially diminish or impair property values in the vicinity.
G. No Other Remedy. There is no means other than the requested variance by which the hardship can be avoided or remedied to a degree sufficient to permit a reasonable use of the property.
7. Authorized Variances. Variances from the regulations of this Code shall be granted by the Board only in accordance with the standards established in Section 165.82(5) immediately above, and may be granted only in the following circumstances:
A. To allow any yard setback less than required.
B. To allow any yard encroachments greater than permitted.
C. To allow the use of a lot for a use otherwise permitted when such use is prohibited solely because of the lot’s area, width or depth does not meet minimum requirements.
D. To allow building heights greater than the maximum height allowed with the Board of Adjustment using the knowledge of the surrounding area, total size of the structure compared to the requested height and location of the structure on the lot and in consideration of the surrounding neighborhood.
E. To allow the same off-street parking facility to qualify as required facilities for two or more uses, provided that substantial use of such facilities by each user does not take place at approximately the same times.
F. To reduce required off-street parking or loading facilities by not more than one space or by 25 percent of the required facilities, whichever is greater.
G. To increase but not more than 25 percent the maximum distance that required off-street parking facilities are permitted to be located from the use served.
H. To permit the reconstruction of a nonconforming structure which has been damaged to more than 65 percent of its fair market value, when the Board finds compelling necessity requiring continuation of such use.
I. To waive any transitional yard screening requirements in a C or I district if the structure, use or building is already effectively screened by topography or existing screening comparable to the types required.
J. To waive the screening and landscaping requirements for parking areas containing more than four parking spaces and adjoining or fronting on property situated in a residential district or any institutional premises if the closest point of such parking area is at least 100 feet from the nearest residential or institutional property line.
K. To grant an extension of time for the termination of any nonconforming Adult Motion Picture Theaters, Adult Mini Motion Picture Theaters, Adult Massage Parlors, Adult Theaters, Adult Artist-Body Painting Studios, Adult Modeling Studios, Adult Sexual Encounter Center, Adult Cabaret or any other Adult Entertainment Establishment based upon evidence that three years is not a sufficient amount of time to amortize the owner’s investment in such establishment.
L. To allow lots of record developed with more than one single family structure to be subdivided into individual lots for each structure, when one or more of the resulting lots do not meet lot area requirements or other bulk requirements. However, such variance shall not result in the creation of any lot which contains less than 80 percent of the minimum lot area required by the Unified Development Code regulations for the district within which the lots are located. Further, such action does not relieve the owner of compliance with applicable platting regulations.
M. In the event that a residential structure, located on a lot created under this provision is subsequently removed, demolished, or is destroyed or damaged to the extent that the cost of restoration exceeds 65 percent of the fair market value prior to the occurrence, said structure shall not be restored nor shall a building permit be issued for a new structure unless specifically authorized by the Board as provided for under Section 165.82(6)(N) below of these regulations.
N. To permit the restoration of a structure which has been damaged to more than 65 percent of its fair market value or construction of a new residential structure on lots created under Section 165.82(6)(L) above of these regulations.
O. To extend to 24 months the time a legal nonconforming use may be vacant or discontinued without requiring any subsequent use to conform to the use regulations of the district where it can be established that a delay in reoccupying a property has been caused by government and/or court action which is clearly beyond control of the property owner.
P. To allow a variance to the subdivision requirements where it can be shown that strict compliance with the requirements of this Code would result in extraordinary hardship to the subdivider, because of unusual topography or other conditions, the Board may vary, modify or waive the requirements so that substantial justice may be done and the public interest is secured provided, however, that such variance, modification or waiver will not have the effect of nullifying the intent and purpose of this Code. In granting a variance, the Board may impose such additional conditions as are necessary to secure substantially the objectives of the requirements so varied, modified or waived.
8. Specified Variances Prohibited. No variance shall be granted which would:
A. Permit a use which is not allowed as a permitted use by the provisions of this Code in the district in which a property is located, nor any use expressly or by implication prohibited therefrom.
B. Permit the creation of a lot or parcel that cannot be developed in compliance with the zoning, subdivision, and other regulations applicable thereto.
C. Be greater than the minimum variance necessary to relieve the practical difficulty or unnecessary hardship demonstrated by the applicant.
9. Relief Less Than Requested. A variance less or different than the one requested may be granted when the records support the applicant’s right to some relief but not the relief requested.
10. Conditions on Variances. The Board may impose such conditions, including restrictions and safeguards, upon the property benefited and the variance granted as considered necessary to prevent or minimize adverse effects upon other property in the vicinity or upon public facilities and services. Such conditions shall be expressly set forth in the grant of variance. Violation of such conditions shall be a violation of this Code.
11. Permits and Approvals Still Necessary. A grant of a variance shall not necessarily authorize immediate action. As appropriate and as required by the codes and ordinances of the City, other permits and approvals shall be obtained. These may include building permits, certificates of occupancy, subdivision approval, and the like. The relief accorded by the grant of variance and any conditions imposed thereon shall be taken in appropriate account in issuance of any said subsequent permits and approval(s).
12. Subdivision Related Variances. Paragraphs 2 through 6 of this Section 165.82 shall not apply to variances of the requirements of Sections 165.47 through 165.67 of this Unified Development Code. An application for a variance from those requirements shall be filed, in writing, with the Zoning Administrator. The application shall be in the number of copies and contain such information as the City Council may, by resolution, require. Where it can be shown by the applicant that the requirements of Sections 165.47 through 165.67 of this Unified Development Code will result in extraordinary hardship to the subdivider, because of unusual topography or other conditions, the City Council may vary, modify or waive the requirements so that substantial justice may be done and the public interest is secured provided, however, that such variance, modification or waiver will not have the effect of nullifying the intent and purposes of this Code. By way of example, the City Council has the authority to issue a variance of the subdivision regulations by permitting a conveyance of real estate using a plat of survey prior to approval of the final plat.