(A) In general. The ZBA shall have authority to act on those matters where this chapter provides for administrative review, appeal, interpretation or special approval appeal, and shall have authority to authorize a variance as defined in this chapter and laws of the state. The ZBA shall not have the authority to alter or change zoning district classifications of any property, nor to make any change in the text of this chapter.
(B) Administrative review. The ZBA shall have authority to hear and decide appeals where it is alleged that there is an error in an order, requirement, permit, decision or refusal made by an official, board or commission in carrying out or enforcing any provisions of this chapter. In hearing and deciding appeals under this division, ZBA review shall be based upon the record of the administrative decision being appealed, and the ZBA shall not consider new information which has not been presented to the Administrative Official, Board or Commission from whom the appeal is taken. The ZBA shall not substitute its judgment for that of the administrative official, board or commission being appealed, and the appeal shall be limited to determining, based upon the record, whether the administrative official, board or commission breached a duty or discretion in this chapter.
(C) Interpretation. The ZBA shall have authority to hear and decided requests for interpretation of the zoning ordinance, including the zoning map. The ZBA shall make such decision so that the spirit and intent of this chapter shall be observed. Text interpretations shall be limited to the issues presented, and shall be based upon a reading of the chapter as a whole, and shall not have the effect of amending the chapter. Map interpretations shall be made based upon rules in the chapter and any relevant historical information. In carrying out its authority to interpret the chapter, the ZBA shall consider reasonable and/or practical interpretations which have been consistently applied in the administration of the chapter. Prior to deciding a request for an interpretation, the ZBA may confer with staff and/or consultants to determine the basic purpose of the provision subject to interpretation and any consequences which may result from differing decisions. A decision providing an interpretation may be accompanied by a recommendation for consideration of an amendment of the chapter.
(D) Special land use approval appeals. The ZBA shall have authority to hear and decide appeals from the decision of the Planning Commission regarding special land use approvals. In deciding such appeals, the ZBA shall review the Planning Commission’s application of the specific special land use approval standards applicable. The method and scope of appellate review under this division (D) shall be governed by the same standards applicable to review under division (B) above. The ZBA shall be authorized to impose conditions determined appropriate by the ZBA, and as authorized by law, in connection with a decision on a special land use approval appeal.
(E) Variances. The ZBA shall have authority in specific cases to authorize one or more variances from the strict letter and terms of this chapter by varying or modifying any of its rules or provisions so that the spirit of this chapter is observed, public safety secured and substantial justice done. Such authority shall be exercised in accordance with the following standards.
(1) The ZBA may grant a requested non-use variance only upon a finding that practical difficulties exist. A finding of practical difficulties shall require demonstration by the applicant of all of the following.
(a) Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters, will unreasonably prevent the owner from using the property for a permitted purpose or will render ordinance conformity unnecessarily burdensome.
(b) The variance will do substantial justice to the applicant, as well as to other property owners.
(c) A lesser variance than requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.
(d) The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district.
(e) The problem and resulting need for the variance has not been self-created by the applicant.
(2) In all variance proceedings, it shall be the responsibility of the applicant to provide information, plans, testimony and evidence from which the ZBA may make the required findings. Administrative officials and other persons may, but shall not be required to provide information, testimony and evidence on a variance request. The fact that a township representative does not appear and/or present information, testimony and/or evidence on a particular variance request, shall not be considered or construed as being a waiver of the right to make such a presentation at a later date or an acknowledgment that the information, testimony and/or evidence does not exist, and shall not be evidence, in and of itself, that a variance should be granted.
(3) The following are specified as appropriate considerations by the ZBA in hearing and deciding variance requests, provided, this list shall in no respect constitute a limitation upon the considerations which may be made by the ZBA:
(a) Other lands, structures, buildings, lots and uses in the same district and in the general vicinity of the property in question;
(b) Whether granting the variance will confer special privileges on the applicant that have been denied by this chapter and/or ZBA in other cases;
(c) Whether the requested variance is the minimum necessary to authorize reasonable use of the property in relation to the surrounding area;
(d) Reasonable and available alternatives, which, although not requested by the applicant, would minimize or eliminate the need for variance relief;
(e) The provisions of this chapter from which a variance is requested, including the purpose and intent of such provisions within the context of the chapter as a whole;
(f) The imposition of appropriate and authorized conditions; and/or
(g) The existence of nonconforming structures, uses of land or the combination of structures and uses, shall not be used as a basis or rationale for granting a variance.
(F) Conditions.
(1) The ZBA may impose reasonable conditions in connection with an affirmative decision on an appeal, interpretation or variance request. The conditions may include requirements necessary to ensure adequacy of public services and facilities affected by a proposed use or activity, to protect the natural environment and conserve natural resources and energy, to ensure compatibility with adjacent uses of land and to promote the use of land in a socially and economically desirable manner.
(2) Conditions imposed shall meet the following requirements:
(a) Be designed to protect natural resources, the health, safety and welfare and the social and economic well-being of those who will use the land use or activity under consideration, residents and landowners immediately adjacent to the proposed land use or activity and the community as a whole;
(b) Be related to the valid exercise of the police power, and purposes which are affected by the proposed use or activity; and
(c) Be necessary to meet the intent and purpose of this chapter, be related to the standards established in the ordinance for the land use or activity under consideration, and be necessary to ensure compliance with those standards.
(3) Conditions imposed with respect to the approval of a variance shall be recorded as part of the ZBA minutes, and shall remain unchanged except upon the mutual consent of the ZBA and the landowner following notice and hearing as required for a new case or application. Moreover, to ensure adequate notice of a decision and any conditions, the ZBA may require as a condition to the effectiveness of relief granted that the property owner record with County Register of Deeds, in a form acceptable to the ZBA, an affidavit detailing the relief granted and conditions imposed.
(Ord. passed 10-11-2000) Penalty, see § 153.999