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 variances be granted merely to remove inconveniences or financial burdens that the requirements of this Code may impose of 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. An appeal to the Board of Zoning Appeals (Board) may be made taken by any person aggrieved or by an administrative decision made in the enforcement of this Code and in accordance with the provisions of this section as follows:
(a) Application for Appeal.
(1) An appeal shall be initiated by filing an application in conformance with the general application requirements set forth in Section 1111.03 within 20 days of the date of the administrative order, decision, determination, or interpretation. Such application shall be submitted to the Administrator.
(2) The Administrator shall transmit to the Board the application and all the papers constituting the records upon which the action was taken.
(3) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Administrator makes a written finding that such a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of equity, after notice to the officer from which the appeal is taken and on due cause shown.
(b) Board Review and Action.
(1) The Board of Zoning Appeals shall hold a public hearing in accordance with the procedures set forth in Section 1111.02.
(2) The Board may go into executive session for discussion but all votes shall be taken in public.
(3) The Board may adjourn a hearing in order to permit the obtaining of additional information or to cause such further notice as it deems proper. In the case of an adjourned hearing, persons previously notified and persons already heard need not be notified of the time of resumption of such hearing unless the Board so decides.
(4) The Board shall decide all applications and appeals within 30 days of the final hearing.
(5) A certified copy of the Board's decision shall be transmitted to the applicant or appellant and the Administrator. Such decision shall be binding upon the Administrator and observed by him and shall incorporate the terms and conditions of same in the permit to the applicant or appellant.
(6) A decision of the Board shall not become final until the expiration of five days from the date of such decision, unless the Board finds the immediate taking of effect of such decision is necessary for the preservation of property or personal rights and shall so certify on the record.
(7) No application for a variance, which has been denied wholly or in part by the Board, shall be resubmitted within one year of such denial, except with the concurring vote of not less than four-fifths of the members of the Board. A substantial modification of a request for a variance may be submitted as a new application, however, without regard to the one-year limitation. Before ruling on the new application, the Board shall first make a determination that the modification is substantial.
(8) In making its decision, the Board may approve, approve with modifications or supplementary conditions, or deny the application.
(9) In approving a variance, the Board may impose conditions on their approval as it may deem necessary to further the purposes of this Code. The Board shall require such evidence and guarantee or bond as it may deem to be necessary to ensure compliance with this Code.
(10) Approval of a variance shall become null and void if an application associated with the approval is not submitted within six months of the final hearing. At the time of approval of the variance, the Board may authorize a six month extension for projects of a size and scope that require additional time for preparation of detailed plans prior to construction.
(c) Variances. The Board shall have the power to authorize upon appeal in specific cases, filed as previously indicated, such variances, excluding use variances, from the provisions or requirements of this Code as will not be contrary to the public interest; but only in such cases where, owing to special conditions pertaining to a specific piece of property, the literal enforcement of the provisions or requirements of this Code would cause undue and unnecessary hardship or a practical difficulty depending on the type of variance sought by the applicant.
(1) Findings for a variance. When considering a request for a variance the Board shall be subject to the powers and limitations of this Code further subject to the required findings, as applicable, set forth herein. No single factor may control, and not all factors may be applicable in each case. Each case shall be determined on its own facts.
A. Lot area and setback variance. No variance to the provisions or requirements of the Zoning Code, pertaining to the lot area or setback shall be granted by the Board unless the Board has determined that a practical difficulty does exist or will result from the literal enforcement of the Zoning Code. The factors to be considered and weighed by the Board in determining whether a property owner, seeking an area or setback variance, has proved practical difficulty include:
1. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
2. Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the property;
3. Whether the essential character of the neighborhood would be substantially altered or whether adjoining property would suffer a substantial detriment as a result of the variance;
4. Whether the variance would adversely affect the delivery of government services such as water, sewer, electric. garbage, fire, police or other vital services;
5. Whether the property owner purchased the property with the knowledge of the zoning restriction;
6. Whether the property owner's predicament can feasibly be obviated through some method other than a variance;
7. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by the granting of the variance;
8. Whether the granting of the variance will be contrary to the general purpose, intent and objective of the Zoning Code or other adopted plans of the City of Painesville.
B. Other variances. The Board may authorize a variance, other than a lot area, setback or use variance, in specific cases, from the strict application of the Zoning Code; provided that it has considered the factors enumerated in paragraph (c)(1)A.1. through (c)(1)A.8. above and further provided that all the conditions enumerated in 1. through 5. below have been met:
1. That the variance requested arises from such a condition or circumstance which is unique to the property involved, and which is not ordinarily found in the same zoning district; and is not created by an action or actions of the property owner or the applicant;
2. That the granting of the variance will not adversely affect the rights of the adjacent property owners or residents;
3. That the strict application of the requirements of this Code will constitute unnecessary hardship upon the property owner or the applicant;
4. That the variance desired will not adversely affect the public health, safety, morals or general welfare; and
5. That the granting of the variance desired will not be opposed to the general spirit and intent of the UDC.
(d) Appeal of Board Decisions. Appeals of the final decision of the Board shall be made to the Lake County Court of Common Pleas in accordance with the laws of the state.
(Ord. 16-19. Passed 9-16-19.)