(a) When considering a request for a variance, the Board shall be subject to powers and limitation of powers set forth in Article III, § 3 of the Charter of the City of Kirtland and further subject to the required findings set forth in subsection (b) or subsection (c) depending on the type of variance sought. The applicant for a variance shall have the burden of proof in these proceedings.
(b) No variance to the provisions or requirements of the Zoning Code, pertaining to area zoning requirements such as frontage, setback, and height shall be granted by the Board unless the Board has determined that a practical difficulty exists or will result from a literal enforcement of the Zoning Code. The factors to be considered and weighed by the Board in determining whether a property owner, seeking a dimensional variance such as an area or set back variance, has proved practical difficulty, include, but are not limited to:
(1) Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district; examples of such special conditions or circumstances are: exceptional irregularity, narrowness, shallowness or steepness of the lot, or adjacency to nonconforming and inharmonious uses, structures or conditions;
(2) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(3) Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
(4) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment if the variance is granted;
(5) Whether the variance would adversely affect the delivery of governmental services such as water, sewer, trash pickup or restrict access by safety vehicles or personnel;
(6) Whether special conditions or circumstances exist as a result of actions of the owner;
(7) Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
(8) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance; and
(9) Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district.
(c) Subject to Article III, § 3 of the Charter of the City of Kirtland, the Board may authorize a variance, other than for area zoning requirements such as frontage, setback and height, in specific cases, from the strict application of the Zoning Code, provided that it has considered the factors enumerated in subsections (b)(1) through (9), and further provided that all conditions enumerated in subsections (c)(1) through (7) have been met:
(1) The variance requested stems from a condition which is unique to the property at issue and not ordinarily found in the same zone or district;
(2) The hardship condition is not created by actions of the applicant;
(3) The granting of the variance will not adversely affect the rights of adjacent owners;
(4) The granting of the variance will not adversely affect the public health, safety, or general welfare;
(5) The variance will be consistent with the general spirit and intent of the Zoning Code;
(6) The variance sought is the minimum which will afford relief to the applicant; and
(7) There is no other economically viable use which is permitted in the zoning district.
(Ord. 08-O-37, passed 12-1-2008)