(A) Authority. The City Council, in accordance with the procedures and standards set forth in this section, shall have the authority to grant variances from the provisions of this chapter in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property.
(B) Purpose. The variance procedure is intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this chapter that create practical difficulties or particular hardships.
(C) Persons entitled to seek variances. An application for a variance may be made by the owner of, or any person having a contractual interest in, the subject property.
(D) Procedure. The following procedures shall govern application for variances:
(1) Application. An application for a variance shall be filed with the Zoning Administrator on the form provided and shall contain the following information:
(a) The applicant’s name, address and proof of interest in the property;
(b) The property owner’s name and address, if different than the applicant, and the owner’s signed consent to the filing of the application;
(c) The street address and legal description of the property;
(d) The zoning classification and present use of the property;
(e) A statement of the specific provisions of this chapter from which a variance is sought and the precise variance being sought;
(f) A statement of the characteristics of the property that prevent compliance with the provisions of this chapter;
(g) A site plan showing existing lot lines and dimensions as well as lot area, all easements, all public street and private right-of-ways bordering and adjacent to the site, the use and location of all adjacent property;
(h) The specific feature or features of the proposed use, construction or development that require a variance; and
(i) Such other information or documentation as the Zoning Administrator may deem to be necessary or appropriate for a full and proper consideration and disposition of the application.
(2) Fee. An applicant for a variance shall pay a nonrefundable filing fee in connection with the submittal of the application in accordance with a fee schedule as established, from time to time, by the City Council.
(3) Action of the Zoning Administrator. Upon receipt of a properly completed application for a variance and accompanying documentation, the Zoning Administrator shall forthwith transmit to the Planning Commission the application together with all other documentation made part thereof.
(4) Public hearing. Upon receipt of a properly completed application for a variance, the Planning Commission shall set a date for a public hearing.
(5) Notice. Notice of the public hearing shall be given by the Zoning Administrator by one (1) publication in one (1) or more newspapers of general circulation. Notice shall be published a minimum of ten (10) days prior to the hearing date and a maximum of thirty (30) days to the hearing. Notice shall also be given by first class mail to all owners of property within three hundred fifty (350) feet of the proposed location of the variance. The notice shall describe the particular variance and shall contain a brief description thereof. County assessment records and street addresses shall be deemed sufficient for the location or certification of ownership for notification purposes.
(6) Action of the Planning Commission. Upon the conclusion of the public hearing, the Planning Commission shall transmit its recommendation to the City Council. The Planning Commission shall either recommend the granting of the variance, granting the variance subject to conditions, or denying the variance. The failure of the Planning Commission to act within a timeframe that allows the City Council to act within the mandated sixty (60) days shall be deemed a recommendation for the approval of the variance.
(7) Action of the City Council. After receipt of the Planning Commission’s recommendation or its failure to act within thirty (30) days, the City Council shall either grant the variance with or without conditions or deny the variance.
(E) Standards. In considering an application for a variance, the Planning Commission shall recommend the approval of the variance only upon the finding that the application complies with the standards set forth below.
(1) General standard. No variance shall be granted unless the applicant is able to establish that conforming to the strict letter of the provisions of this chapter would create a unique and particular hardship.
(2) Unique and particular hardship. Unique and particular hardship is defined as the property is exceptional as compared to other property subject to the same provisions by reason of a unique physical condition, including the presence of an existing use or structure, whether conforming or nonconforming; irregular or substandard shape or size; exceptional topographic features; or other extraordinary physical conditions peculiar to and inherent in the subject property. The hardship shall amount to more than a mere inconvenience to the owner and the hardship shall relate to the physical situation of the lot rather than the personal situation of the current owner of the property.
(3) Not self-created. The unique physical condition and hardship shall not be the result of any action or inaction of the property owner or its predecessors in title. The unique physical condition shall have existed at the time of the enactment of the provisions from which a variance is sought or was created by natural forces or was the result of governmental action, other than the adoption of this chapter.
(4) Denied substantial rights. The carrying out of the strict letter of the provision from which a variance is sought would deprive the owner of the subject property of substantial rights commonly enjoyed by owners of other property subject to the same provisions.
(5) Not merely special privilege. The alleged hardship shall not include the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other properties subject to the same provision. The alleged hardship shall not include the inability of the owner to realize a greater profit than if the variance were not granted.
(6) No other remedy. There are no means other than the requested variance by which the alleged hardship can be avoided or remedied to a degree sufficient to permit a reasonable use of the property.
(7) Variance less than requested. A variance less than or different from that requested may be granted when the record supports the applicant’s right to some relief but not to the relief requested.
(8) Essential character of the area. The variance would not result in development on the property that:
(a) Would be materially detrimental or materially injurious to the enjoyment, use, development or value of property or improvements permitted in the vicinity;
(b) Would materially impair an inadequate supply of light and air to the properties and improvements within the vicinity;
(c) Would substantially increase congestion in the public streets due to traffic or parking;
(d) Would unduly increase the danger of flood or fire;
(e) Would unduly tax public utilities and facilities in the area;
(f) Would endanger the public health or safety; and
(g) Would not be in harmony with the general and specific purposes of this chapter and the comprehensive planning policies and objectives of the city.
(F) Conditions on variances. The City Council, upon recommendation from the Planning Commission, may impose specific conditions and limitations upon the granting of a variance as are necessary to achieve the purpose and objectives of this chapter. The conditions and limitations may include but are not limited to those concerning the use, construction, character, location, landscaping, screening, parking and other matters relating to the purpose and objectives of this chapter and shall be expressly set forth in the resolution granting the variance. Violation of any such condition or limitation shall be a violation of this chapter and shall constitute grounds for revocation of the variance.
(G) No presumption of approval. Application for variance does not constitute an assurance or presumption that such variance will be approved.
(H) Effect of approval. The approval of a proposed variance by the City Council shall not authorize the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of application for the permits or approvals as may be required by the regulation of the city, including but not limited to a building permit and a certificate of occupancy.
(I) Limitations on variances. Whenever, within one (1) year (or other designated time period as specified on the variance) after the granting of a variance and when the terms as specified by the variance have not been completed, then such variance shall become null and void, unless a request for extension of time has been granted by the City Council. Such extension requests shall be in writing and filed with the city at least thirty (30) days before expiration of the original variance. There shall be no charge for the filing of such request. Such request may be granted only once.
(J) Prohibited variances. Notwithstanding any other provision of this section, no variance shall be granted to establish a use not permitted in the zoning district where the property subject to the application is located.
(K) Effect of denial.
(1) Variances may be denied by motion of the City Council and such motion shall constitute a finding and determination by the City Council that the standards required for approval do not exist.
(2) No application of a property owner for a variance shall be considered by the City Council within a six (6) month period following a denial for such a request, except the City Council may permit a new application if in its opinion new evidence or a change in circumstances warrants it.
(Ord. 395, passed 7-6-2010)