(a) Purpose. The purpose of this section is to define the procedures that are reviewed by the BZA and provide appropriate review criteria for each procedure. The specific purpose statements for each procedure are as follows:
(1) Purpose of the Variance Procedure. The purpose of a variance is to provide limited relief from the requirements of this code in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this code. It is not intended that a variance be granted merely to remove inconveniences or financial burdens that the requirements of this code may impose on property owners in general. Variances are intended to address extraordinary, exceptional, or unique situations that were not caused by the applicant's act or omission.
(2) Purpose of the Appeals Procedure. The appeals process is the procedure to follow when a person claims to have been aggrieved or affected by an administrative decision made in the administration or enforcement of this code.
(b) Appeals Applicability, Initiation, and Forwarding of the Record.
(1) An appeal may be made regarding any administrative decision made in the administration and enforcement of this code including, but not limited to, administrative decisions by the ZEO.
(2) Appeals shall be initiated by the person aggrieved or affected by any order, decision, determination, or interpretation made by the authority having jurisdiction who is charged with the administration or enforcement of this code.
(3) An appeal may not be made to the BZA when the MPC is making a recommendation to City Council as part of a legislative action such as a code text or map amendment.
(4) Within twenty (20) days of an administrative order, decision, determination, or interpretation, the person appealing the decision or their authorized agent shall submit all required information to the ZEO in accordance with Section 1103.02.
(5) Upon receiving the written appeal of an administrative order, decision, determination or interpretation, the ZEO shall transmit the written appeal with all papers, documents, and other materials related to the appealed order, decision, determination or interpretation to the BZA. This material shall constitute the record of the appeal.
(c) Review Procedure. The review procedure for all variances and appeals shall be as follows:
(1) Step 1 - Application.
A. Any application or submission for an appeal shall be undertaken in accordance with Section 1103.07(b), above.
B. For variance applications, the applicant shall submit an application in accordance with Section 1103.02 and with the provisions of this section.
(2) Step 2 - Administrative Staff Review.
A. For appeals, there shall be no internal staff review required outside of forwarding the record to the BZA in accordance with Section 1103.07(b), above.
B. Upon determination that a variance application is complete, the ZEO shall forward the application to the BZA and may distribute the application to other departments or agencies for review and comment.
C. The ZEO may consolidate any comments from the public received in advance of the hearing and comments from any City departments or other agencies into a report for the BZA to review as part of Step 3.
(3) Step 3 - BZA Review and Decision.
A. The BZA shall hold a public hearing within thirty (30) days of the filing of an appeal or the date the ZEO determines the variance application is complete, provided adequate notification is provided pursuant to Section 1103.02(j).
B. In reviewing the application, the BZA shall, at a minimum, consider the review criteria of this section.
C. The BZA may request that the applicant supply additional information that the BZA deems necessary to review and evaluate the appeal or applications.
D. Within thirty (30) days of the close of the public hearing, or an extended timeframe approved by the applicant, the BZA shall render a decision. In making its decision, the BZA may approve, approve with modifications or supplementary conditions, or deny the application.
E. In making its decision, the BZA shall make specific findings of fact, based directly on the particular evidence presented. The findings of fact shall state that the reasons set forth in the application and as presented by the applicant during the public hearing justify either:
i. Approval of the application;
ii. Approval with modifications or supplementary conditions; or
iii. Denial of the variance application.
iv. In approving any variance, the BZA must find that such approval will make possible a reasonable use of the land, building, or structure.
F. The ZEO shall notify the applicant, in writing, of the decision of the BZA.
G. If the BZA fails to make a recommendation within the established timeframe, or an extended timeframe approved by the applicant, the application shall be deemed denied.
H. The decision of the BZA shall become effective immediately.
I. In approving a variance, the BZA may impose conditions on the approval to ensure compliance with the standards of this section and the purpose of this code. Any conditions established by the BZA shall relate directly to the requested variance.
J. Any violation of the conditions of approval shall be a violation of this code, subject to the enforcement and penalties of Chapter 1116: Enforcement and Penalties.
(d) Variance Review Criteria.
(1) Where an applicant is seeking an area or dimensional variance, the following factors shall be considered and weighed by the BZA to determine if a practical difficulty exists that would justify approval of the variance. However, no single factor listed below may control, and not all factors may be applicable in each case. Each case shall be determined on its own facts. The application for a variance shall not be based exclusively upon a desire to increase the value or income potential of the parcel of land or any structures or uses thereupon. The BZA shall take into consideration:
A. Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district. Examples of such special conditions or circumstances are exceptional irregularity, narrowness, shallowness or steepness of the lot, or proximity to nonconforming and inharmonious uses, structures or conditions;
B. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
C. Whether the variance is the minimum necessary to make possible the reasonable use of the land or structures;
D. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
E. Whether the variance would adversely affect the delivery of governmental services such as water or sewer;
F. Whether special conditions or circumstances exist as a result of actions of the applicant (actions of the applicant shall not include the purchase or acquisition of the property);
G. Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
H. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance;
I. Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district; and
J. Whether a literal interpretation of the provisions of this code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this code.
(2) Use variances are not permitted. The use of a property outside of what is allowed within the applicable zoning district may be considered as part of the review of an adaptive reuse of an existing building in accordance with Section 1105.03.
(e) Appeals Review Criteria. An administrative order, decision, determination or interpretation shall not be reversed or modified unless there is competent, material, and substantial evidence in the record that the order, decision, determination, or interpretation fails to comply with either the procedural or substantive requirements of this code.
(f) Stay. A properly submitted appeal shall stay all administrative proceedings by the City in furtherance of the action appealed, unless the ZEO certifies to the BZA that a stay would cause imminent peril to life or property, in which case the administrative proceedings shall not be stayed unless a restraining order is granted by the BZA or by a court of competent jurisdiction, for good cause shown.
(g) Time Limit.
(1) The applicant shall submit a completed application for a zoning permit and start work within one (1) year of the date a variance was approved or the approval shall expire.
(2) Upon expiration of a variance approval, a new application, including all applicable fees, shall be required before a variance application will be reviewed.
(3) Upon written request, one extension of six months may be granted by the ZEO if the applicant can show good cause for a delay.
(4) As part of the variance approval, the BZA may authorize alternative time limits for zoning permit issuance based on the scale of the proposed development.
(h) Appeals. Any person or entity claiming to be injured or aggrieved by any final action of the BZA shall have the right to appeal the decision to the court of common pleas of the applicable county, as provided in ORC Chapters 2505 and 2506.
(Ord. 2024-032. Passed 7-22-24.)