(a) Purpose.
(1) The purpose of a variance is to provide limited relief from the requirements of this code in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this code. It is not intended that a variance be granted merely to remove inconveniences or financial burdens that the requirements of this code may impose of property owners in general. Variances are intended to address extraordinary, exceptional, or unique situations that were not caused by the applicant's act or omission.
(2) Standards found in Chapter 1222: Subdivision Design may not be altered through this variance process. Any modification to those standards shall be reviewed as a subdivision modification pursuance to § 1226.07(g).
(b) Variance review procedure. The review procedure for variances shall be as follows:
(1) Step 1 - Application. The applicant shall submit an application in accordance with § 1226.02 and with the provisions of this section.
(2) Step 2 - Staff review and staff report.
A. Upon determination that a variance application is complete, the Development Code Administrator shall refer the application to the BZA.
B. Prior to the BZA hearing for the variance application, the Development Code Administrator shall review the application and prepare a staff report.
(3) Step 3 - BZA review and decision.
A. The BZA shall hold a hearing on the variance application at its next regularly scheduled meeting or at a special meeting after the application is determined to be complete, subject to the submittal deadlines established by the Development Code Administrator.
B. The BZA shall review the variance application during a hearing. In reviewing the application, the BZA shall at a minimum, consider the staff report from the Development Code Administrator and the review criteria of this section.
C. Notification of the hearing shall be provided in accordance with § 1226.02(i).
D. In making its decision, the BZA may approve, approve with modifications or supplementary conditions, or deny the application.
E. In approving a variance, the BZA may impose conditions on the approval, the proposed use, and the premises to be developed or used pursuant to such approval as it determines are required to ensure compliance with the standards of this section and the purpose of this code. Any violation of the conditions of approval shall be a violation of this code, subject to the enforcement and penalties of Chapter 1228: Enforcement and Penalties.
F. For use variances, an automatic condition to any approval shall be that should the existing structure be torn down or damaged beyond 50% of the market value as established by the applicable county auditor, the use variance shall expire.
(c) Review criteria.
(1) Where an applicant seeks a variance to any of the area or dimensional standards in this code, said applicant shall be required to supply evidence that demonstrates that the literal enforcement of this code will result in practical difficulty for an area/dimensional variance as defined in division (c)(3) below.
(2) Where an applicant seeks a use variance that would allow for a use not otherwise permitted in the applicable zoning district, said applicant shall be required to supply evidence that demonstrates that the literal enforcement of this code will result in an unnecessary hardship as defined in division (c)(4) below.
(3) Area and dimensional variance review criteria.
A. The following factors shall be considered and weighed by the BZA to determine practical difficulty:
1. Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district; examples of such special conditions or circumstances are: exceptional irregularity, narrowness, shallowness or steepness of the lot, or adjacency to nonconforming and inharmonious uses, structures or conditions;
2. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
3. Whether the special conditions and circumstances are a direct result from the actions of the applicant, his or her agents, or prior property owners;
4. Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
5. 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;
6. Whether the variance would adversely affect the delivery of governmental services such as water, sewer, electric, refuse pickup, or other vital services;
7. Whether special conditions or circumstances exist as a result of actions of the owner;
8. Whether the property owner's predicament can feasibly be obviated through some method other than a variance;
9. Whether the spirit and intent behind the code requirement would be observed and substantial justice done by granting a variance; and/or
10. Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district.
B. No single factor listed above may control, and not all factors may be applicable in each case. Each case shall be determined on its own facts.
(4) Use variance review criteria. In order to grant a use variance, the BZA shall determine that strict compliance with the terms of this code will result in unnecessary hardship to the applicant. The applicant must demonstrate such hardship by clear and convincing evidence that all of the following criteria are satisfied:
A. The property cannot be put to any economically viable use under any of the permitted uses in the zoning district in which the property is located;
B. 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;
C. The variance requested cannot otherwise be resolved by a zoning map amendment or a zoning map amendment is not the most beneficial approach;
D. The essential character of the neighborhood will not be substantially altered as a result of the variance;
E. There is an existing structure that cannot be reasonably used for a permitted use or a conditionally permitted use in the applicable zoning district;
F. The proposed use is listed in Table 1204-3;
G. The hardship condition is not created by actions of the applicant;
H. The granting of the variance will not adversely affect the rights of adjacent property owners or residents;
I. The granting of the variance will not adversely affect the public health, safety or general welfare;
J. The variance will be consistent with the general spirit and intent of this code;
K. The requested use is permitted in another district in this code; and
L. The variance sought is the minimum that will afford relief to the applicant.
(d) Time limit.
(1) The applicant shall submit a completed application for a certificate of zoning compliance within one year of the date the variance was approved or the approval shall expire.
(2) Upon expiration of a variance approval, a new application, including all applicable fees, shall be required before a new variance will be reviewed.
(3) Where a variance applies to a structure, the variance approval shall expire if the structure is demolished or otherwise torn down unless the requirements of Chapter 1224: Nonconformities applies.
(e) Appeals. Any person or entity claiming to be injured or aggrieved by any final action of the BZA shall have the right to appeal the decision the court of common pleas as provided in R.C. Chapters 2505 and 2506.
(Ord. O2018-02, passed 2-20-2018)