The Board of Zoning Appeals shall have the power, in specific cases, and with approval from Council, to vary the application of certain provisions of this Zoning Code in order that the public health, safety, convenience, comfort and general welfare may be safeguarded and substantial justice done for the following reasons:
(a) Where unnecessary hardships would result from the literal application of the provisions of this Zoning Code. Hardships which are unavoidable if the purpose and intent of this Zoning Code are to be realized, such as theoretical loss or limited possibilities of economic advantage, are not unnecessary hardships. Likewise, a hardship based on conditions created by the owner is not an unnecessary hardship. It must be found that there are peculiar and special hardships as are applicable to the property involved which are separate and distinct from the general hardship in the use district;
(b) Where exceptional circumstances or conditions, only applicable to the property involved or to the intended use of the property, do not apply to other property within the same use district. The mere fact that the owner of one parcel might apply prior to the owner of other parcels in the same area would not give him a right to a variance. In such circumstances, a variance would be a special privilege for an individual that would be necessarily denied to others. It must be found, on the other hand, that there are exceptional conditions justifying a variance on one lot, such as topographical or geological conditions or the type of adjoining developments, and that a variance would be justified on any lot where the same exceptional circumstances prevail.
(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. The mere existence of any unnecessary hardship or other exceptional circumstance is not ipso facto evidence for granting of a variance, for such hardships must be balanced against the present conditions and the extent to which such a variance would interfere with the proper future development and rights of adjacent property.
(d) Where the granting of a variance will not be contrary to the general purpose, intent and objectives of this Zoning Code or other adopted plans. A variance merely permits that which is contemplated in this Zoning Code for unnecessary hardships and exceptional circumstances. On the other hand, that which was not contemplated in this Zoning Code, although deemed desirable, should be effected by amendments.
(Ord. 167-93. Passed 8-15-94.)