After receiving a recommendation from the Board of Appeals, the Village Council may authorize upon appeal in specific cases a use variance from the terms of this Planning and Zoning Code, based upon the standards set out in this Section, as will not be contrary to the public interest according to the following procedures:
(a) Application Requirements. An application for a use variance shall be filed for review by the Board of Appeals and the Village Council upon the forms provided, and shall be accompanied by the submission requirements outlined in sub-section 1131.17 (a), where applicable.
(b) Review for Completeness. After receiving an application for a use variance, the Building Inspector shall review the submitted application for completeness and compliance with the applicable submission requirements. If the application is deemed insufficient, the Building Inspector shall notify the applicant of the necessary changes or additional information needed. When the application is deemed complete and the application fee has been paid, the Building Inspector shall officially accept the application for consideration of the action(s) requested on the date such determination is made and place it on the Board of Appeals' agenda.
(c) Review by the Board. According to the procedures established for appeals in this Chapter, the Board of Appeals shall hold a public hearing and give notice of the same. The Board of Appeals shall review each application for a variance to determine if it complies with the purpose and intent of this Planning and Zoning Code and evidence demonstrates that the literal enforcement of this Planning and Zoning Code will result in unnecessary hardship.
(d) Use Variance. In order to grant a use variance, the Board of Appeals and the Village Council 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 criteria in sub-section 1131.21 (d)(1) are satisfied. The applicant may further demonstrate hardship by use of the criteria in 1131.21 (d)(2).
(1) The applicant shall demonstrate hardship with the following:
A. The variance requested stems from a condition that is unique to the property at issue and not ordinarily found in the same zone or district;
B. The granting of the variance will not have any material adverse affect on the rights of adjacent property owners or residents;
C. The granting of the variance will not have any material adverse affect on the public health, safety or general welfare of the Village of Moreland Hills;
D. The variance will be consistent with the general spirit and intent of the Code; and,
E. The variance sought is the minimum that will afford relief to the applicant.
(2) The applicant may submit evidence and the Board of Appeals and the Village Council may also consider:
A. Whether 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; and,
B. Whether, and the extent to which (if applicable), the hardship condition is not created by actions of the applicant.
(e) Requests for Additional Information. The Board of Appeals and the Village Council may request that the applicant supply additional information that they deem necessary to review and evaluate the request for a use variance.
(f) Action by the Board of Appeals. The Board of Appeals shall take one of the following actions:
(1) If the Board of Appeals determines that strict compliance with the terms of this Code will result in unnecessary hardship to the applicant, the Board of Appeals shall recommend approval to the Village Council. The Board of Appeals shall indicate in its minutes the reasons for its actions. As part of the recommendation, the Board may further prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of this Code will be met. Violation of such conditions and safeguards, when made a part of the terms under which the application is granted, shall be deemed a violation punishable under Chapter 1137, Enforcement and Penalties.
(2) If the Board of Appeals determines that strict compliance with the terms of this Code will not result in unnecessary hardship to the applicant, the Board of Appeals shall recommend denial of the application to the Village Council. The Board of Appeals shall indicate in its minutes the reasons for its action.
(g) Action by Village Council. After the Board of Appeals makes a recommendation regarding a proposed use variance, the recommendation, along with the application, shall be submitted to Council.
(1) The purpose of Council's review shall be to confirm or deny the recommendation of the Board of Appeals. In doing so, Council shall rely on the record of the Board of Appeals. A public hearing shall not be required, but Council's action on same shall be held during a regulation or special Council meeting.
(2) Council shall act on the application according to the following:
A. Confirm the recommendation of the Board of Appeals;
B. Refer the application for a use variance back to the Board of Appeals for further study and review;
C. Reverse the recommendation of the Board of Appeals; or,
D. Amend the recommendation of the Board of Appeals.
(Ord. 2012-21. Passed 7-11-12.)