(A) Purpose. The Board shall grant variances from the regulations of this chapter in harmony with their general purpose and intent, only in the specific instances hereinafter set forth, where the Board makes a finding of fact based upon the standards hereinafter presented, that there are practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations.
(B) Application for variation. An application for a variation shall be filed with the Administrative Official in the manner prescribed in § 153.247 of this chapter.
(C) Hearing, notice and decision. The Board shall fix a reasonable time and place for the hearing of an application for a variation, give public notice thereof as well as due notice to parties in interest, and decide the application within a reasonable time. Any party may appear at the hearing in person or by agent or attorney. The concurring vote of four members of the Board shall be necessary to grant a variation. No order granting a variation shall be effective for a period longer than six months unless a building permit is obtained and the construction, alteration or moving of the building covered by the order is started within that period.
(D) Authorized variations. Variations from the terms of this chapter may be granted only in the following instances and in no other:
(1) To vary any of the requirements of this chapter with respect to minimum sizes of lots, maximum height of buildings and other structures, maximum and minimum size of buildings, maximum lot coverage by structures and other impervious surfaces, and minimum depth and width of yards;
(a) Sign size;
(b) Sign height;
(c) Combined sign area for on-premises commercial message signs;
(d) Logo size; and
(e) Location, placement or illumination of signs on a building, or structure, or on the ground.
(E) Standards for variations.
(1) The Board shall not grant a variance from any of the regulations of this chapter, as authorized by subsection (D) above, unless it shall make a finding of fact, based upon the evidence presented to it in a particular case, that:
(a) In the case of property the principal use of which is for business purposes, the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations applicable to the district in which it is located;
(b) The plight of the owner is due to unique circumstances; and
(c) The variation, if granted, will not alter the essential character of the locality.
(2) For the purpose of supplementing the above standards, the Board, in making its determination whether the plight of the owner is due to unique circumstances and whether the variation, if granted, may alter the essential character of the locality, shall take into consideration the following factors to the extent they are established by the evidence and deemed relevant by the Board:
(a) The particular physical surroundings, shape or topographical condition of the property in question would result in a practical difficulty or particular hardship upon the applicant for the variation, as distinguished from a mere inconvenience, if the strict letter of the regulation were enforced;
(b) The conditions upon which the application for variation is based would not be applicable generally to other property in the same district;
(c) The request for the variation is not based exclusively upon the desire to make more money out of the property;
(d) The alleged difficulty or hardship has not been created by any person presently having an interest in the property; and
(e) The variation will not impair an adequate supply of light and air to adjacent properties or substantially increase the run-off of stormwater onto adjacent properties or public streets, or substantially increase congestion in the public streets or increase the danger of fire or otherwise endanger the public safety or substantially diminish or impair property values within the neighborhood.
(3) For the purpose of further supplementing the above standards and factors in connection with requests for variations from the requirements of § 153.068, the Board, in making its determination, may also take into consideration the following factors, among other factors deemed relevant by the Board, to the extent they are established by the evidence and deemed relevant by the Board:
(a) The effects of the proposed construction on the overall appearance of the size and bulk of the existing structures on the property when viewed from streets abutting the property and from adjacent properties;
(b) The proximity of the proposed construction to streets abutting the property and to adjacent properties;
(c) The relative proximity of the proposed construction to streets abutting the property and to adjacent properties in comparison with the relative proximity of existing structures on other properties in the same vicinity;
(d) The magnitude of the variation requested in absolute terms and in proportion to the floor area and/or impervious surfaces allowed if the strict letter of the regulation were enforced;
(e) The need for other variations in connection with the proposed construction and the nature and extent of those other variations;
(f) The need for the variation to allow the owner or occupant of the property to make reasonable use of a structure, the design of which otherwise fails to conform to generally accepted or prevailing standards of the village for the use and enjoyment of a structure as a residence for a family;
(g) The efficient and advantageous use of existing structures and the degree to which the proposed construction makes efficient, economical and advantageous use of existing and proposed floor area and impervious surfaces; and
(h) The reasonableness of the variation requested in light of the purposes served by the proposed construction and the design problems of the existing structure intended to be alleviated by the proposed construction.
(4) For purposes of supplementing the above standards and factors in connection with requests for variations from the requirements of § 153.067, the Board, in making its determination, may also take into consideration the following factors, among other factors deemed relevant by the Board, to the extent they are established by the evidence and deemed relevant by the Board:
(a) The height and location of existing and proposed structures on the property and adjacent properties;
(b) The need to maintain the height of the proposed structure in relation to the height of an existing structure in order to enable the existing and proposed structures to present a pleasing appearance reflecting architectural integrity and harmony among separate structural elements; and
(c) The need to maintain a particular height of a proposed addition to a structure in order to observe sound structural design and accommodate good building practices in the construction of the proposed addition.
(5) For the purpose of supplementing the above standards with regard to variations for signs, the Board, in making its determination shall take into consideration the following factors to the extent they are established by the evidence and deemed relevant by the Board:
(a) In the case of a commercial message sign, strict application of the Kenilworth Sign Code would render the applicant unable to yield a reasonable return from its property.
(b) The variation will not endanger the public safety or substantially diminish or impair property values within the neighborhood;
(c) The variation would not result in a sign or master sign plan as required by the Kenilworth Sign Code that:
1. Would not be in harmony with the general and specific purposes for which the Kenilworth Sign Code and the provisions from which a variation is sought were enacted;
2. Would be materially detrimental to the public welfare or materially injurious to the enjoyment, use, development, or value of adjacent property or improvements;
3. Would substantially increase congestion in the public streets due to parking or traffic;
4. Would create an unnecessary distraction to vehicle and pedestrian traffic; and
5. Would result in a sign that is not aesthetically consistent with the environment, or not proportional or architecturally compatible with existing land uses and buildings and with any adjacent residential neighborhood.
(F) Conditions. The Board may impose conditions and restrictions upon the premises benefitted by the variance as may be necessary to comply with the standards set out in subsection (E) above to reduce the injurious effect of the variation upon other property in the neighborhood, and better to carry out the general intent of this chapter.
(G) Prohibited variations.
(1) No variation as to use. Under no circumstances shall the Board grant a variance under this section to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited in the district by this chapter.
(2) No variation as to prohibited sign. Under no circumstances shall the Board grant a variant under this section to allow a sign prohibited under § 153.050.
(Ord. 577, passed 4-14-1969; Ord. 1018, passed 6-22-2009; Ord. 1057, passed 2-22-2011)