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(1) The Plan and Zoning Commission (PZC) and the Zoning Administrator may authorize variations from the terms of this chapter, as specified in this section, so long as the relief is in harmony with the purpose and intent of this chapter, and will not be contrary to the public interest.
(2) Variations may be authorized only on those specific instances enumerated in this section, and then only as indicated that the PZC or the Zoning Administrator has the authority to grant the variation requested, and has made findings of fact based upon the standards set out in this section. Such determinations shall reflect that, owing to special conditions, a literal enforcement of the provisions of this chapter will, in an individual case, result in practical difficulties or particular hardship for the owner, lessee or occupant of land or a structure.
(3) Final determination of all variations shall be made by the Plan and Zoning Commission for a PZC variation, or the Zoning Administrator for an administrative variation for which no appeal is made.
(B) Purpose. In certain circumstances, strict application of the regulations of this chapter may cause practical difficulties or a particular hardship relating to construction or alteration of buildings or structures. In such instances the Plan and Zoning Commission may grant variations from strict application of the terms of this chapter.
(C) Application procedure for variation. A complete application for a variation shall be filed with the Zoning Administrator. The Zoning Administrator shall determine based on division (E), Authorized variations, whether the application may be heard, and if so, whether the variation requested is to be heard through PZC or Zoning Administrator procedures. All submittals shall contain the information specified on the variation application form provided by the city or additional information as deemed necessary by the Zoning Administrator.
(D) Hearing and notice.
(1) Plan and Zoning Commission variation hearing and notice.
(a) For variations governed by division (E)(1), the PZC shall select at an established meeting or other date it may set as a special meeting.
(b) Notification shall adhere to the published notice and written notice requirements as contained in § 156.120(E)(3), Notification requirements.
(c) The PZC may give any additional notice as it may, from time to time, by rule provide.
(d) Any party of interest may appear and be heard at the hearing in person, by agent or by attorney.
(2) Administrative variation hearing and notice.
(a) For administrative variations governed by division (E)(2), a public hearing is not required.
(b) Notification required shall be through first class mail to all property owners within one property radius of the subject property, including across a street or other right-of-way.
(c) The notice shall include the street address or common description of the property involved, and a description of the variation requested.
(d) A signature line shall be provided on the notice and those property owners to whom notice was sent must communicate to the Zoning Administrator regarding their support of or opposition to the proposed variation. If all property owners to whom notice was sent do not provide such agreement, the variation shall be heard by the PZC.
(E) Authorized variations.
(1) Plan and Zoning Commission authorized variations. Variations from the regulations of this chapter may be granted by PZC, only in accordance with the standards set out in division (F), Standards for variations, and may be considered only in the following instances:
(a) To vary the applicable lot area and lot width requirements, including the minimum lot area per dwelling unit requirement for multiple-family dwellings;
(b) To vary dimensional requirements of bulk regulations, including but not limited to, maximum height, lot coverage, floor area ratio and minimum yard requirements;
(c) To vary the applicable off-street parking and off-street loading requirements governed by §§ 156.090et seq., provided that:
1. Reductions in the front and corner side yard setbacks in nonresidential districts to accommodate off-street parking spaces may be approved only when it is the finding of the PZC that ample green space along roadways is provided to maintain a character consistent with surrounding properties, and that specific unique existing hardships require the requested relief; and
2. Landscaping is provided at all property lines and for a minimum of seven feet from all property lines;
(d) To vary the regulation relating to the restoration of damaged or destroyed nonconforming structures contained in § 156.062, Nonconforming Structures;
(e) To vary any bulk regulations for accessory structures or permitted uses governed by § 156.023(E), General and bulk regulations for accessory structures and uses permitted as encroachments.
(2) Administrative variations. Variations from the regulations of this chapter may be granted by the Zoning Administrator in accordance with the requirements of this section and the standards set out in division (F), Standards for variations, and may be considered in the following instances:
(a) To vary dimensional requirements of bulk regulations subject to the following limitations:
1. Up to 20% from the existing condition as built for existing structures for:
a. Lowland yards (such as wetlands or floodplain). The required yard adjacent to a lowlands maintenance easement cannot be varied;
b. The minimum, lot-area-per-dwelling-unit requirement for multiple-family dwellings shall not be reduced to permit more than one dwelling unit in addition to the number that would be permitted by strict application of minimum-lot-area requirements.
2. Up to 10% or ten feet, whichever is less, for accessory structures or permitted obstructions governed by § 156.023(E), General and bulk regulations for accessory structures and uses permitted as encroachments;
3. Up to 20% for other bulk standards, including but not limited to, maximum height, lot coverage, floor area ratio and minimum yard requirements;
(b) To vary the applicable lot-area and lot-width requirements, subject to the following limitations:
1. The minimum lot-width requirements shall not be reduced more than 20%;
2. The minimum lot-area for a single-family or two-family dwelling shall not be reduced more than 20%;
3. The minimum, lot-area-per-dwelling-unit requirement for multiple-family dwellings shall not be reduced to permit more than one dwelling unit in addition to the number that would be permitted by strict application of minimum-lot-area requirements;
(c) To vary the number of required parking spaces contained in § 156.102, Schedule of Parking Requirements, by no more than 10% or two spaces, whichever is greater.
(F) Standards for variations.
(1) Standards. The PZC or Zoning Administrator shall not vary the regulations of this chapter without making positive findings of fact based upon the evidence as presented that:
(a) The property in question cannot yield a reasonable return, if permitted to be used only under the conditions allowed by the regulations of the district in which it is located;
(b) The proposed variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable and unusual hardship that will result if the strict letter of the regulations were carried out, which are not generally applicable to property within the same district;
(c) The alleged hardship has not been directly created by any person presently having a proprietary interest in the premises;
(d) The proposed variation will not be materially detrimental to the public welfare or injurious to other property or improvements in the neighborhood;
(e) The proposed variation will not impair an adequate supply of light and air to adjacent property, substantially increase congestion in the public streets, increase the danger of fire, or endanger the public safety;
(f) The proposed variation will not alter the essential character of the locality;
(g) The proposed variation is in harmony with the spirit and intent of this chapter.
(2) Conditions and restrictions on variations. The PZC, or the Zoning Administrator in the case of administrative variations, may impose conditions and restrictions that include, but are not limited to: location, size, height, construction, berming, screening, landscaping, or other similar means to buffer or protect nearby property and designate standards for installation and maintenance thereof; and design and use of the property benefitted by a variation as may be necessary or appropriate to comply with the foregoing standards, and to protect adjacent property and property values.
(G) Decisions and variations.
(1) Plan and Zoning Commission decisions.
(a) Action by the Plan and Zoning Commission. Within 35 days of the close of the public hearing, the Plan and Zoning Commission shall make a final decision. Failure to do so within 35 days, or longer period if agreed to by the applicant, shall be deemed a decision for denial of the variation by the Plan and Zoning Commission.
(b) If the variation application is denied, a similar application for relief may not be brought before the city for a period of one year.
(c) A variation shall be granted by means of a conclusion or statement of relief granted, supported by findings of fact, which statement and findings shall be transmitted to the applicant not less than 35 days from the date of the decision.
1. The findings of fact shall specify the reason or reasons for granting the variation, and shall refer to any exhibits containing plans and specifications for the proposed variation that have been made a part of the application, or that were introduced at the public hearing as evidence. The exhibits shall remain part of the permanent record of the PZC.
2. The terms of relief granted shall be specifically set forth in conclusions or statements separate from the findings of fact.
(2) Administrative decisions.
(a) If the Zoning Administrator intends to grant the variation, supported by the findings of fact; deems the variation to be in conformance with those that are authorized in division (F), Standards for variations; has not received any objections within 14 days of receipt of required notice; and the applicant does not object or disagree with any condition of approval imposed by the Zoning Administrator, then the administrative variation shall be approved. The applicant shall be notified in writing of the approval.
(b) If any of the following occurs, then the administrative variations shall not be granted and the applicant may file for a non-administrative variation:
1. The Zoning Administrator is going to deny the variation;
2. There was an objection to the variation within 14 days of receipt of required notice; or
3. The applicant objects or disagrees with any condition of approval imposed by the Zoning Administrator.
(H) Period of validity.
(1) Time frame. No decision granting a variation shall be valid for a period longer than 12 months from the date of the decision unless:
(a) An application for a zoning certification is obtained within the period and construction, reconstruction, moving and remodeling is started; or
(b) An occupancy certificate is obtained and a use is commenced.
(2) Extensions of time. The PZC, or the Zoning Administrator in the case of administrative variations, may grant additional extensions of time not exceeding 180 days each, upon written application made within the initial 12-month period, without further notice or hearing, but the right to extend the time shall not include the right to grant additional relief by expanding the scope of the variation; provided, however, that nothing in this section shall limit or affect the validity of a variation granted under the terms of this section, if the relief sought and obtained does not require the issuance of a zoning or occupancy certificate, or the commencement of use, construction, reconstruction, moving or remodeling.
(I) Resubmission. If a proposed variation application is rejected, the application, or one substantially similar, may not be resubmitted within 12 months of the date of rejection.
(J) Fees. Fees for applications and processes related to this section shall be as found in § 156.126, Fees.
(Ord. 21-016, passed 8-18-21)