(a) The Board of Zoning Appeals, upon application, and after hearing and subject to the procedural and substantive standards set forth herein, may grant variances from the terms of this Code. Variances are distinguished as either "use" variances or "area" variances. A "use" variance is an application for a deviation from the permitted uses in a Zoning District as opposed to a variance from a Zoning restriction on setbacks, bulk, height, etc. An "area" variance is an application for a deviation from the Zoning restrictions on setbacks, bulk, height, etc. in a Zoning District.
(b) An application an appeal or variance shall include the following information:
(1) Seven (7) copies and one (1) digital pdf copy of an application form provided by the City that includes:
A. The name, address, phone number and email address of the applicant and property owner(s).
B. The address and parcel number of the property in question.
C. The Section of the Code from which the variance being sought or the action that is being appealed.
D. The existing Zoning District in which this property is located.
(2) A copy of the denied Zoning Clearance Permit or a copy of such other action taken under this Ordinance that is being appealed.
(3) If the applicant is not the owner of the property, a signed letter from the property owner shall be submitted authorizing the applicant to serve as their agent for the application.
(4) A legal description of the subject property.
(5) A plot plan drawn to an appropriate scale, as determined by the City Planner or designee, showing at a minimum the following information:
A. The entire lot(s) subject to the application request.
B. All adjacent rights-of-way.
C. The location and height of all existing and proposed buildings and structures with a notation of the setbacks of each from all property lines and rights-of-way.
D. All parking lots, driveway or other vehicular use areas.
E. All existing and proposed signs.
F. Proposed landscaping.
G. Distances to any residential District if less than one thousand (1,000) feet from the lot(s).
H. The existing use of the lots on all adjacent lands.
I. Building elevations, if determined necessary by the City Planner or designee to better understand potential impacts on adjacent properties.
(6) The names and addresses of all property owners within one hundred (100) feet of the subject property as appearing on the County Auditor's current tax list.
(7) A narrative statement explaining the following:
A. A description of the existing and proposed uses
B. The nature and magnitude of the variance request.
C. A response as to how the proposed variance satisfies each of the decision criteria listed in Section 1157.05
(g).
(8) The applicable fee as listed in the separate fee schedule adopted by City Council.
(c) Public Hearing. The Board of Zoning Appeals shall hold a public hearing within thirty (30) days after the receipt of a completed application for a variance or appeal. The Board may recess such hearings from time to time, and if the time and place of the continued hearing is publicly announced at the time of adjournment, no further public notice shall be required. Any person with interest may appear and testify at the public hearing in person or by attorney.
(d) Notice of the public hearing shall be placed in one (1) or more newspapers of general circulation in the City at least ten (10) days before the day of said hearing. The notice shall set forth the date, time and place of the public hearing, and the nature of the proposed appeal or variance.
(e) At least ten (10) days before the public hearing, notices shall also be sent by first class mail to all parties of interest. Parties of interest shall include at a minimum, owners of property within one hundred (100) feet from, contiguous to, and directly across the street from the property being considered. The notice shall contain the same information as required for the notice published in the newspaper as specified in Section 1157.05(
d). Failure of delivery of such notice shall not invalidate the findings of the Board.
(f) Criteria for Approving a Use Variance. The Board of Zoning Appeals may grant a use variance only upon a finding by clear and convincing evidence of an "unnecessary hardship". The factors to be considered and weighed by the Board in determining whether and unnecessary hardship exists include, but are not limited to, the following:
(1) Whether the requested use variance stems from a condition which is unique to the property at issue and not ordinarily found in the same zone or District;
(2) Whether the claimed hardship was created by actions of the applicant;
(3) Whether granting the variance will adversely affect the rights of adjacent property owners;
(4) Whether granting the variance will adversely affect the public health, safety or general welfare;
(5) Whether the variance will be consistent with the general spirit and intent of the Zoning Code;
(6) Whether the variance sought is the minimum which will afford relief to the applicant; and
(7) Whether there is an economically viable use of the property which is permitted in the Zoning District
(g) Criteria for Approving an Area Variance. The Board of Zoning Appeals may grant an area variance upon a finding by clear and convincing evidence of "practical difficulty" in meeting Code requirements. The factors to be considered and weighed by the Board in determining whether a property owner has encountered practical difficulties include, but are not limited to, the following:
(1) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(2) Whether the variance is substantial;
(3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
(4) Whether the variance would adversely affect the delivery of governmental services, for example, water, sewer, garbage, etc.;
(5) Whether the property owner purchased the property with knowledge of the Zoning restriction;
(6) Whether the property owner's practical difficulty can be eliminated through some method other than a variance, and;
(7) Whether the spirit and intent behind the Zoning requirement can be observed and substantial justice can be done by granting a variance.
(h) Burden of Proof. The burden of proof is on the applicant to present reliable, probative, and substantial testimony and evidence that supports the request for a variance.
(i) Action by Board. Within thirty (30) days of the conclusion of the public hearing, the Board of Zoning Appeals shall either: approve, approve with supplementary conditions, or disapprove the request for a variance. The Board of Zoning Appeals must provide consideration of the requirements listed in Sections 1157.05(
f) or 1157.05
(g) as applicable when making its decision. Its decision shall be accompanied by written findings of fact specifying the reasons for the decision reached. If the application is approved or approved with supplementary conditions, the Board of Zoning Appeals shall make a finding that the reasons set forth in the application justifying the granting of the variance that will make possible a reasonable use of the land, building, or structure.
(j) Supplemental Conditions. The Board of Zoning Appeals may prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of the regulations or provisions to which the variance applies will be met. Any violation of such conditions and safeguards, when they have been made a part of the terms under which the Variance has been granted, shall be deemed a punishable violation under this Zoning Code.
(k) Time Limitation on Variances. A variance that has been granted, but which has not been utilized within twenty-four (24) months from date of mailing the order granting the variance shall thereafter be void, provided that the Board has not extended the time for utilization. For the purpose of this provision, utilization shall mean actual use or the issuance of a building permit, when applicable, provided construction is diligently carried to completion.
(l) Reapplication. No application for a variance that is substantially similar to an application that has been disapproved or granted, wholly or in part, shall be submitted for one year after the decision of the Board of Zoning Appeals. The City Planner or designee shall consider factors such as the nature or size of a proposal, changes in the development of traffic pattern in the area, or newly discovered evidence pertinent to a decision on a previous application.
(Ord. 15-23. Passed 8-14-23.)