(a) Planning and Zoning Commission Consideration. The Planning and Zoning Commission may authorize upon appeal in specific cases such variance from the terms of the Zoning Ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the Zoning Ordinance would result in unnecessary hardship. No nonconforming use of neighboring lands, structures, or buildings in the same district and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for issuance of a variance.
(b) Requirements for Variance. A variance from the terms of the Zoning Ordinance shall not be granted by the Planning and Zoning Commission unless and until a written application for a variance is submitted to the Zoning Inspector and the Planning Commission containing:
(1) Name, address, and phone number of the applicant(s) and representative(s) if any, and the signature of the property owner(s).
(2) A current and accurate legal description of the property(s) in question and a current survey prepared by a licensed surveyor.
(3) The nature of the variance required including what provisions of the Zoning Code are affected.
(4) A statement pertaining to and explaining the relation of the variance(s) requested to the criteria for approval as listed under subsection (c) hereof.
(5) A list of all property owners within, contiguous to, and directly across the street from the property(s) in question. The list of addresses may correspond to the County Auditor's current tax list.
(6) A plot plan to show:
A. Boundaries and dimensions of the property and the size and location of all proposed and existing structures.
B. The nature of the special conditions or circumstances.
C. The proposed use of all parts of the lot and structures.
D. The use of land and location of structures on adjacent properties.
E. Such additional information as may be required by this Zoning Code and/or requested by the Commission and/or the Zoning Inspector to review the application.
(c) Criteria for Approval. All relevant factors including but not limited to the following considerations shall be examined in the review, public hearing, and approval of an application for a variance:
(1) That special circumstances or conditions exist which are not applicable to other lands or structures in the same zoning district.
(2) That a literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the provisions of this Zoning Code.
(3) That the special conditions and circumstances do not result from the actions of the applicant.
(4) That the granting of the variance will not confer on the applicant any undue privilege that is denied by this Zoning Code to other lands or structures in the same zoning district.
(5) That the granting of the variance will in no other manner adversely affect the public health, safety, convenience, comfort, prosperity, and general welfare.
(6) That the granting of the variance is not solely based upon the showing that the property could be put to better economic use than presently permitted by zoning regulations.
(7) That the granting of the variance will not permit a use that is otherwise not permitted within the respective zoning district.
(d) Review Procedure.
(1) Filing of Application. Fifteen (15) copies of a completed application shall be filed with the Zoning Inspector at least thirty-five days (35) days prior to a regularly scheduled meeting of the Planning and Zoning Commission. Prior to accepting such application, the Zoning Inspector shall review the submittal and determine whether such application is complete and meets all submittal requirements. Failure to submit a complete application, as determined by the Zoning Inspector, shall result in a refusal of acceptance.
(2) Public Hearing. The application shall be heard at the next public hearing, provided the applicant meets the requirements of subsection (d)(1) hereof. Nothing in this section shall prevent the Commission from granting a continuance of the public hearing.
(3) Public Notice for Hearing. At least one (1) notice shall be given at least ten (10) days prior to a scheduled public hearing in one (1) or more newspapers of general circulation in the Municipality. Such notice shall include the time and place of the public hearing and the nature of the proposed variance(s).
(4) Notice to Property Owners. Written notice of the hearing shall be mailed by the Municipality, at least ten (10) days prior to the date of a scheduled public hearing to all property owners as listed under subsection (b)(5) hereof. The notice shall correspond to subsection (d)(3) hereof in content.
(5) Procedure at Hearing. Within thirty-five (35) days of the public hearing, the Planning and Zoning Commission shall review the application and render one of the following decisions:
A. Approval of variance(s) as requested.
B. Approval of variance(s) with modifications.
C. Disapproval of variance(s).
The Commission shall apply criteria in subsection (c) hereof in reaching its determination. In approving a variance(s), the Commission may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violations of such conditions and safeguards, when made a part of the terms under which the variance is approved, shall be deemed a violation of this Zoning Code and punishable as prescribed herein. The Commission's determination in taking action on a requested variance shall be accompanied by findings of fact and a statement of the reasons for the decision reached.
(e) Issuance of Zoning Certificate. Upon approval of the Planning and Zoning Commission or upon appeal and approval by Council, and with such conditions attached by either body as may be necessary to secure the objectives of this Zoning Code, the Zoning Inspector shall issue a Certificate of Zoning Compliance for all approved variances to the applicant within ten (10) days of approval. The requirements relative to expiration of Section 1183.05 shall apply.
(f) Appeals. Whoever is aggrieved or affected by the decision of the Commission involving an application for a variance(s) shall have the right to file an appeal with Council. The appeal shall be filed with the Clerk no later than ten (10) days after the decision of the Commission. Council shall have a maximum of sixty (60) days for consideration, public hearing, and a decision on the appeal. In reaching a determination on a requested variance appeal to Council, the applicable portions of subsection (c) hereof shall apply.
(Ord. 38-04. Passed 10-11-04.)