(a) The City of Middleburg Heights through the Board of Zoning and Building Appeals may grant a variance from this regulation as provided herein. In determining whether there is unnecessary hardship or practical difficulty such as to justify the granting of a variance, the City of Middleburg Heights shall consider the potential harm or reduction in stream and/or wetland area functions that may be caused by a proposed structure or use. The City of Middleburg Heights shall also consider in determining whether to grant a variance whether the severity of the burden imposed by this regulation upon an individual's property rights would constitute a taking without just compensation under the Takings Clause of the Fifth Amendment of the United States Constitution.
(b) In making a variance determination, the City of Middleburg Heights shall consider the following:
(1) Varying the front, rear and side yard setback before the riparian and wetland setbacks are varied.
(2) Variances should not be granted for asphalt or concrete paving in the riparian and wetland setbacks in any situation where gravel or porous pavement (i.e., porous pavers, and similar products) would be practicable and feasible.
(c) In making a variance determination, the City of Middleburg Heights may consider the following:
(1) The soil type natural vegetation of the parcel, as well as the percentage of the parcel that is in the 100-year floodplain. The criteria of the City of Middleburg Heights's flood damage prevention regulations may be used as guidance when granting variances in the 100-year floodplain.
(2) The extent to which the requested variance impairs the flood control, soil erosion control, sediment control, water quality protection, or other functions of the riparian and/or wetland area. This determination shall be based on sufficient technical and scientific data.
(3) The degree of hardship this regulation places on the landowner, and the availability of alternatives to the proposed activity.
(4) Soil disturbing activities permitted in a riparian and/or wetland setback through variances should be implemented in order to minimize clearing to the extent possible, and to include Best Management Practices necessary to minimize soil erosion and maximize sediment control.
(5) The presence of significant impervious cover or smooth vegetation such as maintained lawns, in riparian setback areas compromises their benefits to the City of Middleburg Heights.
(6) A reduction in storm water infiltration into the soil in wetland areas will occur.
(7) A requested above ground fence does not increase the existing area of mowed grass or lawn.
(8) Modifying parking requirements before varying the riparian setback.
(9) Modifying building shape, size or design to avoid or minimize intrusion into the riparian setback.
(10) In the case of a lot made unbuildable or to which no economically viable use exists as a result of this regulation, consider the minimum variance needed to make it buildable or restore economic viability for an appropriately sized and compatibly designed structure, while following the guidance provided in this section.
(11) Whether the variance will increase the likelihood for flood or erosion damage to either the applicant's property or to other properties.
(12) Culverting of streams should be avoided.
(13) Whether the variance will result in the need for artificial slope or bank stabilization measures that could interfere with the function of the riparian zone.
(Ord. 2008-19. Passed 2-26-08.)