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The Zoning Board of Appeals, herein referred to as the “Board,” upon application thereto, shall have the power to hear and decide appeals and grant variances from the provisions and requirements of this chapter which will not be contrary to the public interest or the general purpose and intent of this chapter, and only in those specific instances defined in § 1141.02, based upon the standards set forth in § 1141.03 where, owing to special conditions of a lot, strict enforcement of the provisions or requirements of this chapter would cause unreasonable hardship.
(Ord. 98-104, passed 9-14-1998)
Variances from the provisions and requirements of this chapter shall be granted by the Board only in accordance with the standards established in § 1141.03 and shall be limited to the following circumstances and no others:
(a) To vary the applicable bulk regulations for buildings and structures, including maximum height, lot coverage, required yard areas and other required open space;
(b) To vary the applicable minimum requirements for lot frontage and distances from lot lines; and
(c) To vary the applicable minimum requirements for lot frontage and distances from lot lines in conjunction with the granting of a conditional use pursuant to Chapter 1172 of this Part.
(Ord. 98-104, passed 9-14-1998)
(a) The Board shall not be authorized to grant a variance for an active use which is otherwise prohibited for the zoning district in which the property is located. The Board shall not grant a variance as authorized in § 1141.02 unless it can determine that there are practical difficulties encountered by the applicant in complying with the resolutions, ordinances, regulations, measures and orders of administrative officials or agencies governing zoning, building and housing. This evaluation shall include, but is not limited to, the following criteria:
(1) Whether the property will yield a reasonable return without the variance or whether there can be beneficial use of the property;
(2) Whether the variance is substantial;
(3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
(4) Whether the variance would adversely affect the delivery of governmental services;
(5) Whether the property owner purchased the property with knowledge of the resolutions, ordinances, regulations, measures and orders;
(6) Whether the property owner’s predicament feasibly can be obviated through some method other than variance; and
(7) Whether the spirit and the intent behind the resolutions, ordinances, regulations, measures and orders would be observed and substantial justice done by granting the variance.
(b) No single factor listed above shall control, and not all factors shall be applicable in each case. Each case shall be determined on its own facts.
(c) The Board may impose conditions and restrictions upon the property benefitted by a variance as the Board may deem necessary to comply with the standards set forth in this section, to reduce or minimize the impact of the variance upon other property in the neighborhood and to further the purpose and intent of this chapter.
(Ord. 98-104, passed 9-14-1998)
Any person owning or having an interest in property may file an application regarding that property with the Zoning Administrator for one or more of the variances authorized in § 1141.02 of this chapter. The application shall be signed and completed in full by the applicant and shall contain the following information and additional information as the Board may, by rule, require:
(a) The particular provisions or requirements of this chapter by section which prevent the proposed use of the property;
(b) The existing district classification of the property;
(c) The special conditions, circumstances or characteristics of the land, building or structure that prevent compliance with the requirements of this chapter;
(d) The extent to which it would be necessary to modify the requirements of this chapter in order to permit the proposed use of the property;
(e) An explanation of how the requested variance conforms to the evaluation criteria in § 1141.03;
(f) A complete list of names and addresses of all owners of all real property within 300 feet of the parcel or parcels as appears on the County Auditor’s current tax list or the Treasurer’s mailing list and other lists as may be required by the Board; and
(Ord. 2004-155, passed 1-10-2005)
(g) Ten copies of the site plan drawn to the scale as the Board shall, by rule, require, showing the actual dimensions of the property according to the recorded plat of the property, including contour lines; all significant vegetation and other significant natural environmental features on the property, the use, height, location and ground area of all present and proposed buildings and structures; the location of all vehicular entrances to and exits from the property, the location of all off-street parking areas and number of spaces provided therein; the building lines in relation to lot lines, and the number, type, size and location of all present and proposed signs, if any.
Upon receipt by the Zoning Administrator of a complete application for a variance, the Zoning Administrator shall notify the Board which shall hold a public hearing as soon as practical.
(a) Notice of hearing. Notice of the time and place of the hearing by the Board of an application for a variance shall be given to all owners listed on the notarized statement of the property owners with same notice published at least once, not less than ten days before the hearing, in a newspaper of general circulation in the city. The published notice may be supplemented by the additional form of notice as the Board may, by rule, require.
(b) Conduct of hearing. Any person who satisfies the Chairperson of the Board that he or she has a significant interest in the subject matter of the hearing shall be afforded an opportunity to present evidence and argument, and to question through the Chairperson witnesses on all relevant issues, subject to the Chairperson’s imposition of reasonable limitations on the number of witnesses, and the nature and length of testimony in questioning. All testimony at the hearing shall be under oath administered by the Chairperson, or by affirmation. The Board shall make a full and complete record of the hearing, by any appropriate means. In the event of the filing of a judicial complaint challenging the Board’s decision, the record shall be transcribed on order of the Chairperson of the Board.
(Ord. 98-104, passed 9-14-1998)
(c) Communications outside of the hearing. Members of the Board shall base their consideration of the application for variance only upon the following information and evidence:
(1) Testimony and argument presented at the hearing, and not upon direct or indirect communication with any party or representative of the party made outside of the hearing;
(2) Reports, memoranda and other materials prepared by the Zoning Administrator in connection with the application and made a part of the record at the time of the hearing; and
(3) Personal inspections of the site which may take place with or without all of the interested parties or representatives present so long as no verbal communication takes place between the members of the Board and any of the parties or their representatives.
(Ord. 99-132, passed 10-11-1999)
The Board shall render a written decision on the application for variance setting forth its findings, together with the reasons for its decision. The written decision shall be communicated to the applicant within 30 days from the close of the hearing. The Zoning Administrator shall maintain complete records of all actions of the Board with respect to all applications for variances and shall notify Council of the Board’s action.
(Ord. 98-104, passed 9-14-1998)
No variance granted by the Board shall be valid for a period greater than six months from the date on which the Board grants the variance, unless within the time period, a building permit is obtained and the construction, moving or remodeling of a building or structure on the property is commenced. The Board may for good cause, without notice or hearing, grant a maximum of two extensions not exceeding six months each upon written application by the property owner.
(Ord. 98-104, passed 9-14-1998)
(a) The Board, in granting any variance from the strict application of this Zoning Ordinance, may prescribe conditions in conformance with this section which it deems to be necessary and reasonable. The Board shall attach conditions as safeguards for the protection of the health, safety and welfare of owners and occupants of surrounding lots or the public. Specifically, the Board may attach one or more of the following conditions to a variance:
(1) Paving;
(2) Landscaping and/or screening fence or wall;
(3) Amount and location of off-street parking, loading and signs;
(4) Direction and intensity of outdoor illumination;
(5) Cleaning and painting;
(6) Control or elimination of smoke, dust, radiation, gas, noise or odor;
(7) Hours of operation;
(8) Activities, material storage and uses shall be conducted within an enclosed structure; and/or
(9) Other conditions as may be appropriate.
(b) If the variance is approved with conditions, the Board shall issue the variance listing the specific conditions upon which the variance was granted. Violations of the conditions shall be deemed a violation of this Zoning Ordinance and will be punishable under § 1135.99. Any violations will further revoke the variance which had been conditionally granted.
(Ord. 98-104, passed 9-14-1998)