§ 159.043  INTERPRETATIONS, APPEALS, AND VARIANCES.
   (A)   Interpretations.
      (1)   Purpose.  The interpretation authority established by division (A)(4) of this section is intended to recognize that the provisions of this chapter, though detailed and extensive, cannot, as a practical matter, address every specific situation to which they may have to be applied.  Many such situations can be readily addressed by an interpretation of the specific provisions of this chapter in light of the general and specific purposes for which those provisions have been enacted.  Because the interpretation authority established is an administrative rather than a legislative authority,  it is not intended to add to or change the essential content of this chapter but is intended only to allow authoritative application of that content to specific cases.
      (2)   Authority.  The Director of Planning and Development, subject to the procedures, standards, and limitations of division (A)(4) of this section may, by written order, render interpretations of the provisions of this chapter and of any rule or regulation issued pursuant to it.
      (3)   Parties Entitled to Seek Interpretations.  Applications for interpretations may be filed by any person having a legal or equitable interest in property that gives rise to the need for an interpretation; provided that interpretations shall not be sought by any person based solely on hypothetical circumstances or where the interpretation would have no effect other than as an advisory opinion.
      (4)   Procedure for Review and Decision.
         (a)   Application.  Applications for interpretations of this chapter shall be filed in accordance with the requirements of § 159.040.
         (b)   Action on Application.  Within ten working days following the receipt of a properly completed application for interpretation, the Director of Planning and Development shall inform the applicant in writing of his interpretation, stating the specific precedent, reasons, and analysis upon which the determination is based.  The failure of the Director of Planning and Development to act within ten working days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the application rendered on the day following such ten day period.
         (c)   Records.  A record of all applications for interpretations shall be kept on file in the office of the Director of Planning and Development.  At least once a year, the Director of Planning and Development shall make public a listing of his decisions, by address, regarding the applications for interpretation.
         (d)   Appeal.  Appeals from interpretations rendered by the Director of Planning and Development may be taken to the Board of Zoning Appeals pursuant to division (B)(4) of this section.
      (5)   Standards for Interpretations.  The following standards shall govern the Director of Planning and Development, and the Board of Zoning Appeals on appeals from the Director of Planning and Development, in issuing interpretations.
         (a)   Any use defined in § 159.016 shall be interpreted as therein defined;
         (b)   No interpretation shall permit any use in any district unless evidence shall be presented that demonstrates that it will comply with the general district regulations established for that particular district;
         (c)   No interpretation shall permit any use in a district unless such use is similar to other uses permitted in the district and is more similar to those uses than to uses permitted in a more restrictive district;
         (d)   If the proposed use is most similar to a use permitted only as a conditional use in the district in which it is proposed to be located, then any interpretation permitting such use shall be conditioned on the issuance of a conditional use permit for such use pursuant to division (A)(2) of this section; and
         (e)   No interpretation shall permit the establishment of any use that would be inconsistent with the statement of purpose of the district in question.
      (6)   Effect of Favorable Interpretations.  No interpretation finding a particular use to be permitted or permitted as a conditional use in a particular district shall authorize the establishment of such use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approvals that may be required by the ordinances and ordinances of the City including, but not limited to, a building permit, a certificate of occupancy, subdivision approval, and site plan approval.
      (7)   Limitations on Interpretations.
         (a)   Subject to an extension of time granted by the Director of Planning and Development, no interpretation shall be valid for a period longer than 12 months from the date of issue.
         (b)   An interpretation finding a use to be permitted, or permitted as a conditional use in a particular district, shall be deemed to authorize only the particular use for which it was issued, and such permit shall not be deemed to authorize any allegedly similar use for which a separate use interpretation has not been issued.
   (B)   Appeals.
      (1)   Purpose.
         (a)   The appeal procedure is provided as a safeguard against arbitrary, ill-considered, or erroneous administrative decisions.  It is intended to avoid the need for legal action by establishing local procedures to review and correct administrative errors.  It is not, however, intended as a means to subvert the clear purposes, meanings, or intent of this chapter or the rightful authority of the Director of Planning and Development to enforce the requirements of this chapter.  To these ends, the reviewing body should give all proper deference to the spirit and intent embodied in the language of this chapter and to the reasonable interpretations of that language by those charged with the administration of this chapter.
         (b)   The filing of an appeal shall stay all proceedings in furtherance of the action appealed from, unless the Director of Planning and Development certifies to the Board of Zoning Appeals, after the notice of appeal has been filed, that by reason of facts stated in the certificate, a stay would cause, in his opinion, imminent peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order that may be granted by the Board of Zoning Appeals or by a court of record, on application, of notice to the Director of Planning and Development and on due cause shown.
         (c)   The Board of Zoning Appeals may reverse or affirm, wholly or partly, or may modify the order or final decision as in its opinion ought to be made in the premises, and to that end has all the powers of the officer from whom the appeal is taken.
      (2)   Authority.  The Board of Zoning Appeals shall hear and decide appeals from, and review orders, decisions, determinations, or the failure to act, of the Director of Planning and Development acting pursuant to his or her authority and duties under this chapter and to that end the Board of Zoning Appeals shall have the same powers and be subject to the same standards and limitations as the Director of Planning and Development with respect to any order, decision, or determination being appealed.
      (3)   Parties Entitled to Appeal.  Appeals to the Board of Zoning Appeals concerning the interpretation or administration of this chapter may be taken by any persons aggrieved or by any officer or bureau of the legislative authority of the city affected by any decision of the Director of Planning and Development.
      (4)   Procedure.
         (a)   Application.  An application for appeal to the Board of Zoning Appeals shall be filed not later than 45 days after the action being appealed and shall be in accordance with the requirements of § 159.040.
         (b)   Action by Director of Planning and Development.  Upon receipt of a properly completed application for an appeal, the Director of Planning and Development shall forthwith transmit to the Board of Zoning Appeals the application together with all the papers constituting the record upon which the action appealed from was taken.
         (c)   Public Hearing and Notice.  The Board of Zoning Appeals shall hold a public hearing on the application in accordance with the requirements of § 159.040.  Notice for the public hearing shall be provided in the manner prescribed by § 159.040.
         (d)   Action by Board of Zoning Appeals.  Within 30 days after the close of the public meeting, the Board of Zoning Appeals shall render a written decision on the appeal.  Such decision may reverse, affirm, or modify, in whole or in part, the action appealed from and may include such order or determination as, in the opinion of the Board of Zoning Appeals, is proper to be made in the premises.  The failure of the Board of Zoning Appeals to act within such 30 days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the appeal.
         (e)   Review by Certiorari.  Every decision by the Board of Zoning Appeals shall be subject to review by certiorari. Any person aggrieved by a decision of the Board of Zoning Appeals may present to the Circuit Court of Hamilton County a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the entry of the decision or order of the Board of Zoning Appeals.
      (5)   Right to Grant Variance in Deciding Appeals.  In any case where the application for appeal is accompanied by an application for a variance in accordance with § 159.043(C)(4), the Board of Zoning Appeals shall notice, hear, decide to grant or deny, such variance in compliance with the provisions of § 159.043(C)(4).
      (6)   Conditions and Limitations on Rights Granted by Appeal.  In any case where this chapter imposes conditions and limitations upon any right, any such right granted by the Board of Zoning Appeals on appeal shall be subject to such conditions and limitations in the same manner and to the same extent as if secured without the necessity of an appeal.
   (C)   Variances.
      (1)   Purpose.  The variance procedures are intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this chapter that create unnecessary hardships.  When such hardships may be more appropriately remedied, if at all, pursuant to other provisions of this chapter, the variance procedure is inappropriate.
      (2)   Authority.
         (a)   The Board of Zoning Appeals may authorize upon application in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where,  owing to special conditions, a literal enforcement of the provisions of this chapter would result in serious practical difficulty. No non-conforming use of neighboring lands, structures, or buildings in the same district and no permitted or non-conforming use of lands, structures, or buildings in other districts shall be considered grounds for issuance of a variance.  Variances shall not be granted solely on the grounds of convenience or profit; however, where strict application of the provisions of this chapter would result in serious practical difficulty, convenience or profit may be considered as a relevant factor in the Board decision.
         (b)   The Board of Zoning Appeals may consider issuing a variance from the terms and provisions of the Flood Hazard (FH) District provided the structure for which a variance is requested existed at the time of the effective date of this chapter, and provided the applicant offers that the grant of the requested variance will not increase flood heights, create additional threats to public safety, cause additional public expense, create nuisances, cause fraud or victimization of the public or conflict with existing laws or ordinances.
         (c)   In addition, the Board of Zoning Appeals may consider land use variances in cases in which a proposed use for a property does not fall within the list of permitted or conditional uses for the zone district in which it is located.
      (3)   Parties Entitled to Seek Variance.  An application for a variance may be filed with the Director of Planning and Development by the owner or lessee of the subject property or other person having a legal or equitable interest in the subject property.
      (4)   Procedure for Review and Decision.
         (a)   Application.  Applications for a variance shall be filed in accordance with the requirements of § 159.040.
         (b)   Action by Director of Planning and Development.
            1.   Upon receipt of a properly completed application for a Conditional Use Permit, the Director of Planning and Development shall forthwith transmit it to the Technical Advisory Committee for its review subject to § 159.041.
            2.   The report and recommendations of the Technical Advisory Committee shall be submitted in writing from the Director to the Board of Zoning Appeals for its review.
         (c)   Public Hearing and Notice.  The Board of Zoning Appeals shall hold a public hearing on the application in accordance with the requirements of § 159.040.  Notice for the public hearing shall be provided in the manner prescribed by § 159.040.
         (d)   Action by Board of Zoning Appeals.  Within 45 days after the close of the public meeting, the Board of Zoning Appeals shall in writing either approve, approve with supplementary conditions, or disapprove the application.  If the application is approved or approved with modifications, the Board of Zoning Appeals shall instruct the Director of Planning and Development in writing to issue a Variance Permit listing the variance allowed and the specific conditions specified by the Board of Zoning Appeals for approval.  If the application is disapproved by the Board of Zoning Appeals, it shall notify the applicant in writing.
         (e)   Review by Certiorari.  Every decision by the Board of Zoning Appeals shall be subject to review by certiorari.  Any person aggrieved by a decision of the Board of Zoning Appeals may present to the Circuit Court of Hamilton County a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality.  The petition shall be presented to the court within 30 days after the entry of the decision or order of the Board of Zoning Appeals.
      (5)   Findings of Fact for Variances.
         (a)   Findings of Fact. 
            1.   Every application for a variance shall be subject to the findings of fact as set out in I.C. 36-7-4-918.5 et seq. A variance from the terms of this chapter shall not be granted unless the Board of Zoning Appeals makes specific written findings of fact based directly on the particular evidence presented in the application materials and at the hearing which support conclusions that all of the standards and conditions imposed by recommendation of the Director of Planning and Development and the Technical Advisory Committee have been met. A Development Standards 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 of the community;
               B.   The use arid value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and
               C.   The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.
            2.   In addition to the findings of fact, the Board should consider the following factors when deliberating over a variance request:
               A.   Hardship.  No variance shall be granted pursuant to this unless the applicant shall establish that carrying out the strict letter of the provision's of this chapter would create a particular hardship or practical difficulty. The hardship in the FH zoning district must be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or disagreement with the neighbors also does not qualify as an exceptional hardship as they can be resolved through other means without granting a variance, even if the alternative is more expensive. The need for a property owner to build elsewhere or put the property to a different use than originally intended does not constitute a hardship.
               B.   Unique physical condition.  The subject lot is exceptional as compared to other lots subject to the same provision by reason of a unique physical condition, including presence of an existing use, structure, or sign, whether conforming or non-conforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject lot that amount to more than a mere inconvenience to the owner and that relate to or arise out of the lot rather than the personal situation of the current owner of the lot.
               C.   Not self-created.  The aforesaid unique physical condition is not the result of any action or inaction of the owner or its predecessors in title and 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.
               D.   Denied substantial rights.  The carrying out of the strict letter of the provision from which variance is sought would deprive the owner of the subject lot of substantial rights commonly enjoyed by owners of other lots subject to the same provision.
               E.   Not merely special privilege.  The alleged hardship or difficulty is neither merely the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision, nor merely the inability of the owner to make more money from the use of the subject lot.
               F.   Ordinance and plan purposes.  The variance would not result in a use or development of the subject lot that would not be in harmony with the general and specific purposes for which this chapter and the provision from which a variance is sought were enacted or the general purpose and intent of the Comprehensive Plan.
               G.   No other remedy.  There is no means other than the requested variance by which the alleged hardship or difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject lot.
               H.   Minimum required.  The requested variance is the minimum measure of relief necessary to alleviate the alleged hardship or difficulty presented by the strict application of the ordinance.
         (b)   Additional Considerations for Flood Hazard Areas.  The Board of Zoning Appeals shall, in weighing the appropriateness of a variance for Flood Hazard areas, consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, as well as the following:
            1.   The danger to life and property due to flooding or erosion damage.
            2.   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
            3.   The importance of the services provided by the proposed facility to the community.
            4.   The necessity to the facility of a waterfront location, where applicable.
            5.   The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
            6.   The compatibility of the proposed use with existing and anticipated development.
            7.   Whether development of the subject lot would be in harmony with the general and specific purposes of this chapter, the comprehensive plan, and the floodplain management program of that area.
            8.   The safety of access to the property in times of flood for ordinary and emergency vehicles.
            9.   The expected height, velocity, duration, rate of rise, and sediment of transport of floodwaters at the site.
            10.   Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets, and bridges.
         (c)   Every application for a land use variance shall be subject to the findings of fact as set out in I.C. 36-7-4-918.4 et seq. A variance from the land use of this chapter shall not be granted unless the Board of Zoning Appeals makes specific written findings of fact based directly on the particular evidence presented in the application materials and at the hearing which support conclusions that all of the standards and conditions imposed by recommendation of the Director of Planning and Development and the Technical Advisory Committee have been met. A land use variance may be approved only upon a determination in writing that:
            1.   the approval will not be injurious to the public health, safety, morals, and general welfare of the community;
            2.   the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
            3.   the need for the variances arises from some condition peculiar to the property involved;
            4.   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; and
            5.   the approval does not interfere substantially with the comprehensive plan.
   (F)   Supplemental requirements for variances in flood hazard areas.
      (1)   Variances shall only be issued for properties located within the flood hazard zoning district when there is:
         (a)   A showing of good and sufficient cause.
         (b)   A determination of failure to grant the variance would result in exceptional hardship.
         (c)   A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud or victimization of the public, or conflict with existing laws or ordinances.
      (2)   No variance for a residential use within a floodway may be granted.
      (3)   Any variance for non-residential uses granted in a floodway will require prior approval of a permit from the Indiana Department of Natural Resources.
      (4)   Variances to the standards regulating building protection standards may be granted only when a new structure or substantial improvement is to be located on a lot of one half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection grade.
      (5)   Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
      (6)   Variances may be granted for the reconstruction or restoration of any structure individually listed on the National Register of Historic Places or the Indiana State Register of Historic Sites and Structures. Such repair, rehabilitation, or restoration may be issued only upon a determination that the proposed construction will not preclude the structure's continued designation as an "historic structure" and the variance is the minimum to preserve the historic character and design of the structure.
      (7)   Any applicant that is granted a variance shall be given written notice, which will then be recorded against the deed to the property in the office of the County Recorder, specifying the following:
         (a)   The difference between the base flood elevation and the elevation to which the lowest floor is to be built.
         (b)   Stating that construction of a structure below the base flood elevation will result in increased premium rates for flood insurance. Such rate increase will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
         (c)   Such construction below the base flood elevation increases risks to life and property.
      (8)   The Floodplain Administrator shall maintain records of appeal actions and report any variance to the Federal Emergency Management Agency or the Indiana Department of Natural Resources upon request.
(Ord. 62-12-95, passed 1-22-96; Am. Ord. 23-06-10, passed 7-13-10; Am. Ord. 49-10-14, passed 10-28-14; Am. Ord. 32-07-19, passed 7-23-19)