1264.08  REASONS FOR GRANTING VARIANCES.
   The Board of Zoning Appeals shall have the power, in specific cases, to vary the application of certain provisions of this Zoning Code, in order that the public health, safety, morals and general welfare may be safeguarded and substantial justice done.
   A request for variance may be submitted to the Board of Zoning Appeals by the owner of the property involved or person having a legal interest in such property or acting under written authority of the owner.  Requests shall be filed with the Building Commissioner upon the forms provided, and shall be reviewed by the Board pursuant to Section 1264.03, and in accordance with the following procedures:
   (a)   Submission Requirements.  A request for a variation from a numerical standard in this Zoning Code shall be accompanied by the following requirements necessary to convey the reasons for the requested variance:
      (1)   Name, address and phone number of applicant(s);
      (2)   Proof of ownership, legal interest or written authority;
      (3)   Description of property or portion thereof;
      (4)   Description or nature of variance requested;
      (5)   Narrative statements establishing and substantiating the justification for the variance pursuant to Section 1264.08(e);
      (6)   Site plans/floor plans/elevations or other drawings at a reasonable scale to convey the need for the variance;
      (7)   Payment of the application fee as established by Council;
      (8)   Copies of all applicable Homeowner's Association requirements related to the requested variance, such as covenants, deed restrictions, and the like.
      (9)   Any other documents deemed necessary by the Building Commissioner.
   (b)   Review for Completeness by the Building Commissioner.  Upon receipt of a written request for variance, the Building Commissioner shall make a preliminary review of the request to determine whether such application provides the information necessary for review and evaluation and if it is determined that such application does not provide the information necessary for such review and evaluation, the Building Commissioner shall so advise the applicant of the deficiencies and shall not further process the application until the deficiency is corrected.
   (c)   Public Hearing by the Board of Zoning Appeals.  The Board of Zoning Appeals shall hold a public hearing within sixty (60) days from the date the application is accepted as complete by the Building Commissioner.
   (d)   Notice of Public Hearing.  Notices of the time and place of a public hearing shall be mailed to the appellant and to the affected property owners (owners of property contiguous to the property in question, and across the street therefrom, or within 500 feet, whichever is the most inclusive) as they appear in the current records of the County Auditor, or be published, once a week for two successive weeks prior thereto, in two newspapers of general circulation in the City of North Royalton.  In addition, such notices shall be posted on the posting boards established by City Council.
   (e)   Review by Board.  The Board of Zoning Appeals shall review each request for a variance to determine if such request complies with the purpose and intent of this Zoning Code and the Master Plan, and the applicant can demonstrate that the literal enforcement of this Code will result in practical difficulty or, in the case of a use variance, unnecessary hardship.
      (1)   The following factors shall be considered and weighed by the Board in determining practical difficulty:
         A.   Whether there can be any beneficial use of the property without the variance;
         B.   Whether the variance is substantial or is the minimum necessary to make possible the reasonable use of the land or structures;
         C.   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;
         D.   Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage collection);
         E.   Whether the variance sought is for relief from a zoning provision which was enacted after the creation of an existing condition or circumstance to the property in question;
         F.   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 adjacency to nonconforming and inharmonious uses, structures or conditions;
         G.   Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
         H.   Whether the granting of the variance will not create a nonconforming lot pursuant to Section 1270.16 of the Zoning Code;
         I.   Whether special conditions or circumstances exist as a result of actions of the owner, including but not limited to, owner’s willful failure to comply with relevant building or zoning codes;
         J.   Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance.
      (2)   No variance shall be granted to allow a use not permissible under the terms of this Zoning Code in the zoning district in which the property is located unless the board finds that the applicant will suffer unnecessary hardship if strict compliance with the terms of the Code is required and such hardship must be demonstrated by clear and convincing evidence as to all of the following criteria:
         A.   Where the literal application of the provisions of this Zoning Code would result in no economically viable use of the property for any purpose for which the property is zoned and thereby creating unnecessary hardship(s) unique to the property and not based on conditions created by the owner.  (A theoretical loss or limiting possibilities of economic advantage are general hardships, not unnecessary hardships.)
         B.   Where other exceptional circumstances or conditions (such as topographical or geological conditions, or type of adjoining development) are unique to the property involved and do not apply to other property within the same zone unless the same exceptional circumstances or conditions exist.
         C.   Where granting of a variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the neighborhood in which the property is located; and
         D.   Where the granting of a variance will not be contrary to the general purpose, intent and objectives of this Zoning Code and the Master Plan of the City of North Royalton; and
         E.   The variance sought is the minimum which will afford relief to the applicant.
      (3)   No variance shall be granted to allow for the expansion or substitution of a lawful non-conforming use unless the board finds that the applicant will suffer unnecessary hardship if strict compliance with the terms of the Code is required and such hardship must be demonstrated by clear and convincing evidence as to all of the following criteria:
         A.   Whether the applicant’s current non-conforming use has been reduced, modified, or eliminated;
         B.   Whether the applicant’s non-conforming expansion or substitution use variance is reasonable for the zoned area. (A material or significant expansion or substitution is not reasonable);
         C.   Whether other non-conforming parcels are located within the zoned area;
         D.   Whether the expansion or substitution of the non-conforming use is less detrimental to the zoned area than the existing non-conforming use of the property;
         E.   Whether the expansion or substitution of the non-conforming use is immaterial, nominal, or a minimal addition or expansion of the use (20% or less expansion is considered minimal);
         F.   Whether the essential character of the neighborhood would be altered or whether adjoining properties would suffer any greater detriment as a result of the expansion or substitution of the non-conforming use;
         G.   Whether the expansion or substitution of the non-conforming use would adversely affect the delivery of governmental services (e.g. water, sewer, garbage collection);
         H.   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;
         I.   Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance;
         J.   Whether the proposed expansion or substitution will create a new or different non-conforming use;
         K.   Whether the expansion or substitution of the non-conforming use will create a nuisance or a threat to public safety.
   (f)   Action by Board of Zoning Appeals.  After the public hearing required in subsection (c) hereof, the Board of Zoning Appeals shall either approve, approve with supplementary conditions as specified subsection (g) hereof, or disapprove the request for variance.  The Board shall further make a finding in writing that the reasons set forth in the application justify the granting of the variance that will make possible a reasonable use of the land, building or structure.
   (g)   Conditions and Limitations by Board.  The Board of Zoning Appeals may further prescribe any conditions, stipulations, safeguards and limitations on the duration of the variance so authorized as the Board determines and prescribes.  Any variance when so issued by the Building Commissioner upon order of the Board shall set forth such conditions, stipulations, safeguards and duration limit.  The Board may not extend the scope or extend the duration of a variance previously issued upon its order.  Any additional action so desired may be effected only upon application to the Building Commissioner for approval of a new variance in accordance with the provisions of this Zoning Code.
(Ord. 1970-232.  Passed 9-15-71. Ord. 97-183. Passed 1-6-98; Ord. 16-144. Passed 10-4-16.)