(a) Intent. The purpose of this Section is to provide guidelines and standards to be followed by the Board in considering requests for variances and appeals, where the jurisdiction of the Board has been established by the City Charter and by this Ordinance.
(b) Purpose of Variances and Appeals.
(1) Appeals. Generally, an appeal may be taken to the Board by a person, or by any office, department, board, or bureau aggrieved by a decision of any administrative or enforcement official or body charged with enforcement of this Ordinance. An appeal must be filed within fourteen (14) days of issuance of the applicable written decision, and such appeal shall be made on forms made available by the Planning Director.
(2) Variances. Where there are "practical difficulties" (for area or size-type variances) or "unnecessary hardships" (for use variances) preventing a property owner from conforming with the strict letter of this Ordinance, the Board shall have the power to authorize variances from the standards in this Ordinance, with such conditions and safeguards as it may determine to be necessary so that the spirit of this Ordinance is observed, public safety secured, and substantial justice done.
(c) Stay of Proceedings. An appeal to the Board shall stay enforcement proceedings in furtherance of the appealed action, unless the Planning Director certifies to the Board that by reason of the facts stated in the appeal, a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed other than by an injunction granted by the Court of Common Pleas. A stay of proceedings shall not stay the City's authority to issue a stop work order on a project that may be in progress and being performed in a manner that is not in conformance with applicable ordinances and regulations. Also, it shall not stay a project when the appeal is brought by a third-party contesting the issuance of a permit.
(d) Application to the Board. Variances and appeals for which Board action is sought shall be commenced by a person filing an application to the Board on forms as specified by the Planning Director and accompanied by required fees. Each application shall be accompanied by the payment of the fee established in Chapter 1108 of the Planning and Zoning Code. In addition, the Board, where appropriate, may refer an application to qualified consultants for a report if it deems the proposed use may require special study. The cost of such report shall be at the expense of the applicant, in accordance with a policy established and amended from time to time by Council.
The application shall specify the grounds upon which the appeal is based and shall contain a notarized signature of the property owner or owner's agent. Applications involving a request for a variance shall specify the section number(s) containing the standards from which a variance is sought and the nature and extent of such variance.
(e) Review by the Board. The Planning Director shall forward the application, along with any supporting materials and plans to the Board. Notice of the hearing shall be published in a newspaper of general circulation in the City at least ten (10) days prior to the date of the hearing, and sent by mail or personal delivery to the owners of property for which a variance request is being considered, and to all owners of property adjacent to and directly across the street from the property in question. At the hearing, a party may appear in person or by agent or by attorney.
(f) Decision by the Board. The concurring vote of three (3) members of the Board shall be necessary to reverse an order, requirement, decision, or determination of the Planning Director, or to decide in favor of the applicant any matter upon which they are required to pass judgment. The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination, in accordance with the guidelines set forth herein. To that end, the Board shall have all the powers of the officer or body from whom the appeal was taken and may issue or direct the issuance of a permit. With an affirmative decision, the Board may impose conditions. The decision of the Board shall be final, but the City, with approval by the Council, or any person having an interest affected by a decision of the Board, may appeal to the Court of Common Pleas, and to any Court of final jurisdiction.
(g) Record of Decision and Order. The Board shall prepare and retain a record of each appeal, and shall base its decision on this record. This record shall include:
(1) The relevant administrative records and the administrative orders issued thereon relating to the appeal.
(2) The notice of the appeal.
(3) Such documents, exhibits, plans, photographs, or written reports as may be submitted to the Board for its consideration.
The written findings of fact, the decisions, and the conditions imposed by the Board in acting on the appeal shall be entered into the official record, after being signed by the Secretary of the Board. The final appealable decision or order of the Board shall be effective upon the written notice of the Board's decision or order is delivered to the applicant or appellant.
(h) Approval Period. If construction has not commenced within twelve (12) months after the Board grants a variance to permit the erection or alteration of a building or structure and completed within two (2) years of the Board approval date, then the variance becomes null and void.
(i) Standards for Variances and Appeals. Variances and appeals shall be granted only in accordance with, and based on, the findings set forth in this Section. The burden of proof for variances and appeals shall be upon the applicant. The extent to which the following factors, standards, and criteria apply to a specific case shall be determined by the Board.
(1) Factors applicable to area or size-type variances ("practical difficulty"). The applicant shall show by a preponderance of the evidence that the variance is justified, as determined by the Board. The Board shall weigh the following factors to determine whether a practical difficulty exists and an area or size-type variance should be granted:
A. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
B. Whether the variance is substantial;
C. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
D. Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
E. Whether the property owner purchased the property with knowledge of the zoning restrictions;
F. Whether the property owner's predicament feasibly can be obviated through some method other than a variance; and/or
G. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance.
(2) Standards applicable to use variances ("unnecessary hardships"). The applicant shall demonstrate by clear and convincing evidence that all of the following standards have been met in order to find an unnecessary hardship exists so as to justify the granting of a use variance, as determined by the Board:
A. The variance requested stems from a condition which is unique to the property at issue and not ordinarily found in the same zone or district;
B. The hardship condition is not created by actions of the applicant;
C. The granting of the variance will not adversely affect the rights of adjacent owners;
D. The granting of the variance will not adversely affect the public health, safety or general welfare;
E. The variance will be consistent with the general spirit and intent of this Ordinance;
F. The variance sought is the minimum which will afford relief to the applicant; and
G. There is no other economically viable use which is permitted in the zoning district.
(3) Factors applicable to sign variances ("practical difficulty"). The applicant shall show by a preponderance of the evidence that the variance is justified, as determined by the Board. The Board shall weigh the following factors to determine whether a practical difficulty exists and a sign variance should be granted:
A. Construction of a conforming sign would obstruct the vision of motorists or otherwise endanger public health or safety;
B. A conforming sign would be blocked from the sight of passing motorists due to existing buildings, trees or other obstructions;
C. Construction of a conforming sign would require removal or severe alteration to significant features on the site, such as removal of trees, alteration of the natural topography, obstruction of a natural drainage course, or alteration or demolition of significant historical features or site amenities;
D. A sign that exceeds the allowable height or area standards of this Ordinance would be more appropriate in scale because of the large size or frontage of the premises or building;
E. The exception shall not adversely impact the character or appearance of the building or lot or the neighborhood;
F. The variance sought is the minimum necessary to allow reasonable use, visibility, or readability of the sign; and/or
G. The variance will be consistent with the general spirit and intent of this Ordinance.
(4) Criteria applicable to appeals. The Board shall reverse an order of a zoning official only if it finds that the action or decision appealed:
A. Was arbitrary or capricious; or
B. Was based on an erroneous finding of a material fact; or
C. Was based on erroneous interpretation of this Ordinance or zoning law; or
D. Constituted an abuse of discretion.
(Ord. 109-14. Passed 6-23-14.)