No variance from the strict application of the standards of this zoning code shall be granted by the Board of Appeals unless and until the applicant demonstrates to the Board's satisfaction all of the following:
(A) Conditions and circumstances. Special conditions and circumstances exist which are peculiar to the land, structure or building involved, and which are not applicable to other lands, structures or buildings in the same district;
(B) Property rights. The literal interpretation of the provisions of this zoning code would deprive the applicant of property rights commonly enjoyed by other properties in the same district under the terms of this zoning code;
(C) Applicant's disregard. The special conditions and circumstances do not result from the actions of applicant, his agent and/or contractor to disregard or circumvent the zoning code but are a result from the applicant's good faith attempts to improve the property, neighborhood and community without substantially infringing on the language and intent of the zoning code;
(D) Harmony with locality. The variance requested shall not alter the essential character of the locality nor substantially or permanently impair the appropriate use or development of adjacent properties;
(E) Magnitude of variance.
(1) The category of variance is of little consequence to the ordinance but of great benefit to a property owner's usability.
(2) A guideline for measuring magnitude is not more than 10% of any measurable criteria, such as a setback.
Example: A property located near the flood plain is constrained by various zoning requirements. The lot is zoned R-3 Single Family, is traversed by the 100-year flood plain, and measures the minimum 3,500 square foot lot size as required. The property owner is seeking a variance to construct the minimum required 800 square foot home as a single story because the footprint cannot fit on the site. The building envelop is only 750 square feet. The front and side yard requirements are ten feet and three feet respectively.
(a) Solution 1: If balancing the site is not an option, the flood ordinance is of higher importance than the setback requirements. With such minimal setbacks the additional 50 square feet would encroach presents a larger magnitude variance than would allowing a 750 square foot structure.
(b) Solution 2: If possible, adding a second story to the structure would reduce the first floor footprint and eliminate the need for a variance.
(F) Alternatives. Whether the applicant's predicament can be obviated through some method other than a variance. The applicant has presented and/or evaluated other alternatives but has concluded this request is the most feasible;
(G) Substantial justice. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
(Ord. O-2019-24, passed 9-9-2019)