The Board of Adjustment is empowered to grant variances from the provisions of this title that will not be contrary to the public interest when, owing to unique circumstances or conditions, a literal interpretation of this title would deprive the applicant of rights commonly enjoyed by other properties in the zoning district under the terms of this title and would impose unnecessary and undue hardship on the applicant. To ensure that the spirit of this title is observed and substantial justice done, no variance to the strict application of any provision of this title shall be granted by the Board unless the applicant demonstrates that all of the following approval criteria are met. The procedures for obtaining a variance are set forth in chapter 8, article C, “Board Of Adjustment Approval Procedures”, of this title.
A. Approval Criteria:
1. The proposed variance will not be contrary to the public interest; and
2. Where owing to special conditions, a literal enforcement of the provisions of the zoning code provision will result in unnecessary hardship; and
3. The spirit of the zoning code provision shall be observed, and substantial justice done.
B. Definitions:
REASONABLE RETURN: | Lack of a reasonable return may be shown by proof that the owner has been deprived of all beneficial use of the land. All beneficial use is said to have been lost where the land is not suitable for anything permitted by the zoning code. A zoning code provision deprives an owner of a reasonable return if all productive use of the land is denied. Such deprivation is shown where the land in issue has so changed that the purpose for which it was originally zoned are no longer feasible. It is not sufficient to show that the value of the land has been depreciated by the zoning code provision, or that a variance would permit the owner to maintain a more profitable use. |
UNNECESSARY HARDSHIP: | The applicant establishes an unnecessary hardship by demonstrating all of the following elements are met: a. The land in question cannot yield a reasonable return if used only as allowed in that zone. b. The plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood. c. The proposed variance will not alter the essential character of the locality. |
C. Use Variance Prohibited: Under no circumstance may the Board grant a variance that would allow a land use, other than those specifically allowed in the zoning district in which the subject property is located.
D. Burden Of Proof: The applicant bears the burden of proof and must support each of the approval criteria by a preponderance of the evidence.
E. Precedents: The granting of a variance is not grounds for granting other variances for the same or differing properties. (Ord. 10-4414, 11-16-2010; amd. Ord. 22-4882, 6-21-2022)