(a) PURPOSE. A variance is a departure from the dimensional or numerical requirements of this Code where such variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not as a result of the action of the applicant, a literal enforcement of this Code would result in unnecessary and undue hardship. Variances are permitted only to those portions of this Code as specified herein.
(b) APPLICABILITY.
(2) The zoning hearing officer shall hear and decide all requests for variances of greater than 10% for bulk standards included on Tables 35-3201.1, 35-3201.2, 35-3201.3, 35-3301.1, and 35-3301.2, except for:
a. Maximum units per lot, minimum lot dimensions, and maximum floor area ratio on Table 35-3201.1; and
b. Minimum lot dimensions and maximum building size on Table 35-3301.1.
(3) The zoning hearing officer shall hear and decide all requests for variances to the nonconforming lot, use, site, and structure regulations of Article III, provided that no nonconforming use shall be changed or expanded beyond the limits imposed in Sec. 35-3111.
(4) The City Council shall hear and decide all requests for variances to minimum lot dimensions on Tables 35-3201.1. and 35-3301.1. as part of preliminary plat approval.
(5) As per the special use review procedures and criteria of Sec. 35-2206, the plan commission shall hear and decide all requests for variances to the maximum building size requirements on Table 35-3301.1.
(6) As per this section, the plan commission shall hear and decide variance to all other provisions of this Code, unless otherwise specified.
(7) Under no circumstances shall variances be heard or granted for the following:
a. The establishment of a use in a district in which such use is not permitted by this Code;
b. Residential development which would result in an increase in density greater than that permitted in the applicable zoning district;
c. Changes or modifications to any definition contained in this Code; and
d. Changes in use of or expansion of a nonconforming use beyond those permitted in Section 35-3111.
(c) APPROVAL CRITERIA
. A variance is not a right. It may be granted to an applicant only if the applicant establishes that strict adherence to this Code will result in undue hardship because of site characteristics that are not applicable to most properties in the same zoning district. Such variances shall be granted only when the applicant establishes that all of the following criteria are satisfied:
(1) Hardship Unique to Property, Not Self-Inflicted
. There are exceptional conditions creating an undue hardship, applicable only to the property involved or the intended use thereof, which do not apply generally to the other land areas or uses within the same zone district, and such exceptional conditions or undue hardship was not created by the action or inaction of the applicant or the owner of the property, or any previous property owner;
(2) Special Privilege
. The variance will not confer on the applicant any special privilege that is denied to other lands or structures in the same zoning district;
(3) Literal Interpretation
. The literal interpretation of the provisions of the regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district and would work unnecessary and undue hardship only on the applicant;
(4) Reasonable Use
. The applicant and the owner of the property cannot derive a reasonable use of the property without the requested variance;
(5) Minimum Necessary
. The variance is the minimum necessary to make possible the reasonable use of land or structures;
(6) Compatible with Adjacent Properties
. The variance will not be injurious to, or reduce the value of, the adjacent properties or improvements or be detrimental to the public health, safety or welfare. In granting a variance, the decision-maker may impose conditions deemed necessary to protect affected property owners and to protect the intent of this Code. The decision-maker may consider prospective financial loss or gain to applicant but consideration shall not be sole reason for granting a variance;
(7) Conformance with the Purposes of this Code
. The granting of a variance will not conflict with the purposes and intents expressed or implied in this Code; and
(8) Conformance with the Comprehensive Plan
. The granting of a variance will not conflict with the goals and principles in the Comprehensive Plan.
(d) DECISION-MAKER. The zoning administrator shall make recommendations and the decision-maker shall approve, approve with conditions, or deny requests for variances.
(e) APPLICATION AND REVIEW PROCEDURES. Application requirements and processing procedures are described in Table 35-2200.1. and Sec. 35-2201.