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In the event a proposed use is not listed as a permitted or conditional use in the district in which it is proposed, but is a permitted or conditional use in another district, the Planning Commission and Council may determine that instead of rezoning the parcel to the district in which the use is permitted, it is in the public interest to authorize the establishment of the use. The use of this provision, however, is not intended to be a substitute for a zoning amendment or the establishment of an appropriate conditional use. The establishment of such proposed use shall be limited to single parcels or multiple parcels, the sum of which does not exceed approximately one-half to three-fourths of an acre in size. The review and approval of the establishment of such use on the specific parcel noted on the application shall be conducted according to the conditional use procedures and submission requirements set forth in Chapter 150.16, including confirmation by Council and the right to appeal the decision from the Board of Zoning Appeals to Council.
(A) In order to grant conditional use approval to a use that is not specifically listed in the district, the Planning Commission and Council shall determine that strict compliance with the terms of this Code will result in unnecessary hardship to the applicant. The applicant shall demonstrate such hardship, by clear and convincing evidence that all of the following criteria are satisfied:
(1) The specific parcel cannot be put to any economically viable use under any of the permitted or conditional uses listed in the Schedule of Uses in the zoning district in which the property is located;
(2) The hardship stems from a condition that is unique to the property at issue and not found in the same zone or district, therefore the granting of the requested use is not likely to be requested by other property owners;
(3) The hardship condition is not created by actions of the applicant;
(4) The granting of the proposed use will not adversely affect the rights of adjacent property owners or residents;
(5) The granting of the proposed use will not adversely affect the public health, safety or general welfare;
(6) The proposed use will be consistent with the general spirit and intent of the Code; and
(7) The proposed use sought is the minimum that will afford relief to the applicant.
(B) The permit shall authorize the particular use on the specific parcel for which it was approved. The operation of such use as specified on the permit shall not be assigned to any other subsequent use or party by virtue of ownership, lease or similar agreement. The breach of any condition, safeguard or requirement shall constitute a violation of this Zoning Code.
(C) Approval of the proposed use shall not be deemed to authorize such use on any other parcel in the district, except when approved for a specific parcel according to this section.
(Ord. 5-2005, passed 3-23-05)