A. Purpose. The variation process is to provide a narrowly circumscribed means by which relief may be granted from unforeseen applications of this Ordinance that create practical difficulties or particular hardships. Variations for wireless telecommunications standards are processed according to § 16.20.030 (Variation To Wireless Telecommunications Standards).
B. Initiation. A property owner in the County, or person expressly authorized by the owner in writing, may request a variation for that property.
C. Applicability of Zoning and Administrative Variations. This Ordinance allows for two (2) types of variations. An administrative variation may be approved by the Zoning Enforcement Officer and a zoning variation may only be approved by the County Board in accordance with the procedures of this section. Variations for wireless telecommunications standards are processed according to § 16.20.030 (Variation To Wireless Telecommunications Standards).
D. Authority. Variations are authorized by the terms of this Ordinance. Zoning variations are authorized by the County Board. The Zoning Enforcement Officer is authorized to grant certain administrative variances. Variations can be applied for only in relation to the zoning standards of this Ordinance, which includes sign regulations. Exemptions to standards for subdivisions are subject to the process contained in § 16.24.050 (Exemptions from Subdivision Standards).
E. Procedure.
1. Application. All applications shall be filed with the Department of Planning and Development in accordance with the requirements in § 16.16.020 (Application).
2. Administrative Variation. The Zoning Enforcement Officer will review and approve applications that meet the following standards:
a. Variation applications of ten percent (10%) or less of the bulk or setback regulations for principal structures, accessory structures, or signs. Encroachments allowed under Table 16.20-1: Permitted Encroachments are ineligible for administrative variation. All other variations are considered zoning variations.
b. No written objections have been received. If any noticed property owner files a written objection to the administrative variation within fifteen (15) calendar days of receipt of such notice, the variation shall be denied. The property owner may apply for a Zoning Variation to be considered by the Hearing Officer or Zoning Board of Appeals.
3. Zoning Variation.
a. Applications for zoning variations that are filed in conjunction with an application of a conditional use permit or zoning map amendment shall be considered by the Zoning Board of Appeals simultaneously with the conditional use permit or zoning map amendment. Applications for zoning variations that are not filed in conjunction with an application for a conditional use permit or zoning map amendment shall be considered by the Hearing Officer. Such applications may be considered by the Zoning Board of Appeals only in the event that the Hearing Officer is unavailable.
c. The Zoning Board of Appeals or Hearing Officer will evaluate the application, based upon the evidence presented at the public hearing, pursuant to the applicable standards in subsection F. below (Approval Standards for Zoning Variations).
d. The Zoning Board of Appeals or Hearing Officer will recommend approval, modified approval or denial of the application within ninety (90) calendar days of receipt of the complete application.
e. Following the recommendation of the Zoning Board of Appeals or Hearing Officer, the Department of Planning and Development shall prepare an ordinance incorporating the findings and recommendations of Zoning Board of Appeals or Hearing Officer.
f. The Department of Planning and Development shall submit the ordinance and Zoning Board of Appeals or Hearing Officer recommendation to the County Board for the next available meeting in accordance with the County Board rules. The applicant shall pay all outstanding fees prior to the ordinance’s submittal to the County Board.
g. Action by the County Board.
(1) The County Board shall take action within one hundred eighty (180) calendar days of the close of the public hearing, unless an extension of time has been authorized by the County Board prior to the expiration of the one hundred eighty (180) calendar day timeframe. The County Board may take action in the form of approval, modified approval, or denial. If the County Board does not act within the one hundred eighty (180) calendar day timeframe, plus any authorized extension of time, the application is deemed denied.
(2) A simple majority vote of the members of the County Board present at a meeting is required to pass a variation, unless any of the following conditions apply:
(a) A favorable vote of three-fourths (¾) of all the County Board members is required to pass a variation if the Hearing Officer recommended denial of the variation.
(b) A favorable vote of three-fourths (¾) of all the County Board members is required to pass a variation if the variation requested did not receive five favorable votes from the Zoning Board of Appeals.
(c) A favorable vote of three-fourths (¾) of all the County Board members is required to pass a variation if the township plan commission objects to the variation and the township board of trustees submits a written objection to the County Board. The letter of objection must be signed by a majority of the township trustees and shall be delivered to the County Board via the County Board chairman with a copy sent to the Zoning Enforcement Officer within fifteen (15) days after the close of the public hearing.
4. Conditions and Restrictions. The Zoning Board of Appeals or Hearing Officer may recommend and the County Board may impose conditions and restrictions upon the location, construction, design, and use of the property seeking a zoning variation that are necessary to protect the public interest and adjacent property. Failure to maintain such conditions or restrictions constitutes grounds for revocation of the variation. The terms of relief granted, including any conditions or restrictions, shall be specifically set forth in the recommendation and approval.
F. Approval Standards for Zoning Variations. No zoning variation from the provisions of this Ordinance may be granted unless the Zoning Board of Appeals or Hearing Officer and County Board makes specific findings that the request meets each of the standards imposed by this section. These standards are as follows:
1. The particular surroundings, shape, or topographical condition of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations was carried out.
2. The conditions upon which the application for a variation are based are unique to the property for which the variation is sought and are not generally applicable to other property within the same zoning district.
3. The purpose of the variation is not based exclusively upon a desire to increase the monetary gain realized from the property.
4. The alleged difficulty or hardship is caused by the Ordinance and has not been created by any person presently having an interest in the property.
5. That the granting of the variation will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
6. That the proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion in the public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property values within the adjacent neighborhood.
7. That the granting of the variation requested will not confer on the applicant any special privilege that is denied by this Ordinance to other land or structure of the same zoning district.
G. Variation Less Than Requested. A variation less than that requested may be granted when the record supports the applicant’s right to some relief, but not to the entire relief requested.
H. Revocation of Variation.
1. Any approved variation shall be null and void if a building permit is not obtained or any structure not requiring a building permit is not erected within one (1) year from the date of approval.
2. The Zoning Enforcement Officer may grant one (1) extension of this period, valid for no more than one hundred eighty (180) additional calendar days, upon written application and with good cause shown, without notice or hearing.
I. Limitations on Denials. No application for a variation, which has been denied, may be resubmitted to the Zoning Enforcement Officer, Zoning Board of Appeals, or Hearing Officer for a period of one (1) year from that date of denial, except as described in § 16.16.020G. (Successive Applications).
(Ord. O-201410-10-035, passed 10-14-2014; Ord. O-201601-ZBA-006, passed 1-19-2016; Ord. O-201603-ZBA-010, passed 3-17-2016, § 5.2; Ord. O-201803-ZBA-10-08, passed 3-19-2018; Ord. O-201808-10-033, passed 8-21-2018)