(a) Dimensional or Non-Use Variances. The ZBA shall have authority in specific cases to authorize one (1) or more dimensional or "non-use" variances from the strict letter and terms of this chapter by varying or modifying any of its rules or provisions so that the spirit of this chapter is observed, public safety secured, and substantial justice done. A dimensional or non-use variance allows a deviation from the dimensional (i.e., height, bulk, setback) requirements of the chapter.
Such authority shall be exercised in accordance with the following standards:
(1) The ZBA may grant a requested "non-use" variance only upon a finding that practical difficulties exist. A finding of practical difficulties shall require demonstration by the applicant of all of the following:
A. Practical Difficulties. Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters, will unreasonably prevent the owner from using the property for a permitted purpose or will render ordinance conformity unnecessarily burdensome.
B. Substantial Justice. The variance will do substantial justice to the applicant as well as other property owners.
C. Unique circumstances. The need for the variance is due to unique circumstances peculiar to the land or structures involved that are not applicable to other land or structures in the same district.
D. Preservation of property rights. The variance is necessary for the preservation and enjoyment of a substantial property right also possessed by other property owners in the same zoning district.
E. Public safety and welfare. The requested variance or appeal can be granted in such fashion that the spirit of this chapter will be observed and public safety and welfare secured.
F. Not self-created. The problem and resulting need for the variance has not been self-created by the applicant or the applicant's predecessors.
G. More than mere inconvenience. The alleged hardship and practical difficulties that will result from a failure to grant the variance include substantially more than mere inconvenience, or an inability to attain a higher financial return.
H. Additional considerations. The ZBA shall consider all of the following when reviewing a variance to ensure that the proposed variance is the minimum necessary to meet the requirements of the applicant under the chapter and may impose condition upon any variance granted based upon its findings under this subsection:
1. The granting of a lesser variance will not provide reasonable relief and substantial justice to the applicant.
2. The granting of a variance will not increase the hazard of fire or otherwise endanger public safety.
3. The granting of a variance will not unreasonably diminish or impair the value of surrounding properties.
4. The granting of a variance will not alter the essential character of the neighborhood or surrounding properties.
5. The granting of a variance will not impair the adequate supply of light and air to any adjacent property.
I. A lesser variance than requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.
(b) Use Variances. The ZBA shall have authority, in specific cases, to establish a use of land that is otherwise prohibited in a zoning district so long as the spirit of the Zoning Ordinance is observed, public safety is secured and substantial justice is done. The ZBA may grant a use variance upon a finding of unnecessary hardship, subject to a two-thirds (2/3) majority vote of the members of the ZBA. A finding of unnecessary hardship shall require demonstration by the applicant of all of the following:
(1) The current Zoning Ordinance prohibits the property owner from securing any reasonable economic return or making any reasonable use of the property. Under this standard, the ZBA shall find that the property (land, structures and other improvements) is not suitable for uses permitted in the zoning district.
(2) The landowner's plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions. Circumstances common to the larger neighborhood may reflect the unreasonableness of the zoning itself, which should be addressed through a rezoning or other legislative action.
(3) The use variance, if granted, would not alter the essential character of the neighborhood. This standard requires consideration of whether the intent and purpose of the chapter and zoning district will be preserved and the essential character of the area will be maintained.
(4) The hardship is not the result of the applicant's actions. Under this standard, the ZBA shall determine that the hardship that led to the use variance request was not self-created by the applicant. Purchase of a property with a pre-existing hardship does not constitute a self-created hardship. Financial hardships that would prevent reasonable use of the property shall be considered, but shall not be the only determining factor in granting a use variance.
(c) In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and/or evidence from which the ZBA may make the required findings. Administrative officials and other persons may, but shall not be required to, provide information, testimony and/or evidence on a variance request. The fact that a variance would increase the value of property or allow an owner to increase profits is not sufficient grounds for granting the variance.
(Res. 98-529A. Passed 12-21-98; Res. 08-363A. Passed 11-17-08, Eff. 12-3-08.)