(A) General. The Area Board of Zoning Appeals upon application, after hearing, and subject to the procedural and substantive standards set forth herein, may grant a variance from the development standards of this chapter. (Such as bulk height and/or area). Variances for uses on unimproved lands, buildings, and buildings and lands in combination are expressly prohibited under I.C. 36-7-918.3. A variance may not cause substantial detriment to the public good, or impair the spirit, purposes and intent of this chapter or the comprehensive plan. Further, in granting the variance, Board of Zoning Appeals must also make a finding of fact that the literal enforcement for the ordinance will result in unnecessary hardship by reason of exceptional narrowness, shallowness, shape, topography or other extraordinary or exceptional situation, condition or circumstance peculiar to the particular property.
(B) Application. A request for a variance shall be initiated by the filing of an application with the Area Board of Zoning Appeals and shall be set for public hearing by its Secretary in accordance with the rules established by the Board.
(1) The application shall include such information as necessary to evaluate such request and such additional information as the Board of Zoning Appeals may require. The minimum requirements for a site plan in accordance with § 153.221(B) will be provided; further, the applicant shall define the nature of the variance being requested and address the criteria for granting a variance as set forth in § 153.245(D)(1).
(2) The applicant for a variance shall be the owner(s) of record or designee with an affidavit of designee by power-of-attorney.
(3) The filing deadline for applications is the second Thursday of the month.
(C) Authorized variations. Variations from the terms of this chapter shall be granted by the Area Board of Zoning Appeals in accordance with the standards set forth in this chapter and may be granted in the following instances.
(1) To permit any building or structure to exceed the height limitations imposed by the applicable regulations, not to exceed a 10% increase, except in the CBD District where the Board of Zoning Appeals may grant through Special Exception any structure height above 75 feet and greater than four stories.
(2) To permit the use of a lot smaller in width or area than the lot width or area required by this chapter.
(3) To reduce the applicable off-street parking or loading facilities.
(4) To permit the same off-street parking facilities to qualify as a required facility for two or more uses provided the substantial use of such facility by each uses does not take place at approximately the same hours of the same days of the week.
(5) To permit the variance from the terms set forth in § 153.207.
(6) The modification a screening requirement as provided in § 153.026.
(7) To permit the variance from the terms set forth in § 153.024(B)(3) permitted yard obstructions.
(9) To permit a variance from the maximum square feet of surface area and/or the maximum height allowed for a bulletin board and/or an identification sign allowed in § 153.042(D)(2)(a) and (b).
(D) Board of Zoning Appeal action.
(1) After public notification of the public hearing in accordance with § 153.243(B), the Board shall hold the public hearing and upon the concurring votes of a majority of the entire membership may approve a variance. A variance may be approved only upon a determination in writing that:
(a) The approval will not be injurious to the public health, safety, morals and general welfare the community;
(b) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
(c) The need application of the variance arose from some condition peculiar the property involved;
(d) The strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought;
(e) The approval does not interfere substantially with the comprehensive plan.
(2) Provided that the Board in granting a variance may prescribe appropriate conditions and safeguards and may require such evidence and guarantee or bonds as it may deem necessary to enforce compliance with the conditions attached.
(E) Time limitation. A Variance which has not been utilized within one year from date of the Board of Zoning Appeals order granting the variance shall thereafter be void, provided that the Board of Zoning Appeals has not extended the time for utilization. For the purpose of this provision, utilization shall mean actual use or the issuance of a building permit, when applicable, provided construction is diligently carried to completion. The exception is the event of litigation concerning such variance. In such case the period of one year shall not begin to run until the complete and final cessation of litigation. The Plan Commission staff is to provide written notice of the pending expiration to the applicant at least 30 days prior to the expiration date. The applicant shall file the request for extension of the variance order within 15 days of the next public hearing.
(F) Time limitation on re-filing. A rehearing of a variance which has been denied, or a new filing or re-filing for a variance which has been denied, shall not be permitted for one year following the denial.
(G) Application withdrawal or amendment. The application for a variance must be withdrawn before the public hearing is opened to avoid the one year penalty per § 153.245(F). Any amendment to the original application by the applicant should be stated at the time of the public, and the Board of Zoning Appeals may propose and the applicant may accept any amendments to the application during the public hearing or during deliberations of the Board of Zoning Appeals before the vote on action. It is within the authority of the Board of Zoning Appeals to determine that an amendment is not substantive in nature or reduces the potential adverse impacts on abutting property owners, and the public hearing may be continued to the next public hearing without re-notification of the abutting property owners if the Board of Zoning Appeals so desires. On the other hand, if the Board of Zoning Appeals determines that an amendment is substantive in nature and does have the potential to increase adverse impacts on abutting property owners, the Board of Zoning Appeals may request that the public hearing be continued to the next public meeting and that the applicant re-notify abutting property owners of the new or supplemental hearing date.
(H) Land use and development agreements for variance. See § 153.224.
(Ord. 12-16, passed 8-8-12; Am. Ord. 2015-2, passed 1-22-15; Am. Ord. 2016-2A, passed 1-21-16; Am. Ord. 19-11, passed 6-20-19)