The Board of Adjustment shall have only the following powers and duties:
1. Administrative Review. To hear and decide appeals where it is alleged there is error in any order, requirement, decisions or determination made by the Zoning Administrator in the enforcement of this Zoning Ordinance or any regulation relating to the location or soundness of structures.
2. Special Use Permits. To hear and decide the approval of applications for special use permits, as provided by this chapter.
3. Variances to Relieve Hardships Relating to Property. To authorize, upon appeal, variances from the strict application of this chapter where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of enactment of the zoning regulations; or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, such strict application would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property.
A. Requirements for Grant of a Variance. No such variance shall be authorized by the Board unless it finds that:
(1) Strict application of the zoning ordinance will produce undue hardship and would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.
(2) Such hardship is not shared generally by other properties in the same zoning district and in the same vicinity.
(3) The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance.
(4) The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice.
(5) The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable a general regulation to be adopted as an amendment to this Zoning Ordinance.
(6) The granting of the variance will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of any ordinance or resolution.
(7) The land in question cannot yield a reasonable return from any use permitted by the regulations of the district in which the land is located. Failure to yield a reasonable return may only be shown by proof that the owner has been deprived of all beneficial or productive use of the land in question. It is not sufficient merely to show that the value of the land has been depreciated by the regulations or that a variance would permit the owner to maintain a more profitable use.
(Ord. 921 - Aug. 17 Supp.)
B. Findings by Board. The Board of Adjustment shall make findings that the requirements of this section have been met by the applicant for a variance.
C. Conditions for Grant of Variance.
(1) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under this chapter.
(2) Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in said district.
(3) No nonconforming use of neighboring lands, structures, or buildings in the same district and non-permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.
D. Board has Powers of Zoning Administrator on Appeals; Reversing Decisions of Zoning Administrator. In exercising the above mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decisions, or determination as ought to be made, and to that end shall have the powers of the Zoning Administrator from whom the appeal is taken.
E. The concurring vote of a majority of the entire Board shall be necessary to reverse any order, requirements, decision or determination of the Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to effect any variation in the application of this chapter.
F. All meetings of the Board of Adjustment shall be open to the public. The Zoning Administrator shall keep minutes of its proceedings, showing the vote of each member on each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Zoning Administrator and shall be a public record. The presence of a majority of the entire Board shall be necessary to constitute a quorum.
G. A resolution signed by the Chairperson or acting Chair of the Board of Adjustment shall be kept in the office of the Zoning Administrator. The resolution shall set forth the full reason for its decision and the vote of each member participating therein.
H. The Board of Adjustment may hear and review applications for and authorize minor modifications from the requirements of this Code in compliance with the applicable provisions set out below.
(1) The Board of Adjustment may hear and review applications for and authorize minor modifications from the requirements of this Code in compliance with the applicable provisions set out below.
a. Reduce the required minimum front and rear yard setbacks for principal structures in the residential districts by no more than five feet, based on the setback standards.
b. Reduce the required minimum interior and street side setbacks for principal structures in the residential districts by no more than two feet and five feet, respectively, based on the setback standards in the district.
c. Increase the maximum height of a detached garage in the residential districts to 20 feet or the height of the principal structure, whichever is less, as measured at the midpoint of the roof slope halfway between the top of the sidewall and peak of the structure.
d. Allow an addition to an existing legal nonconforming structure to extend no closer to the property line than an adjoining portion of the existing structure.
e. Allow an increase in the aggregate maximum size of all accessory structures on a property by 15% above the square footage requirements allowed in 165.30(3.E). This minor modification does not apply to cases where the principal structures are setback from the rear lot line by 200% or more of the minimum required rear yard for the district, as described in 165.30(3.E)
f. Reduce the minimum required front, interior and street side, and rear yard setbacks in the residential districts, without limit, as required to provide handicap accessible ramps to a dwelling or allow reconstruction of a historically accurate structure.
(2) Approval Criteria. The decision to approve, approve with conditions, or deny an exception must recite the findings upon which the approval or denial is based which shall include the following:
a. General Guidelines. The power to grant a minor modification should be exercised under circumstances where approval of the exception will maximize a property owner's use of property and better carry out the intent of this Code and the Comprehensive Plan than strict adherence to this Code.
b. Obligation of Applicant. A minor modification shall not be approved unless the applicant establishes the existence of each of the following conditions:
i. Granting the minor modification would be in the public interest, meaning that the applicant must explain how the modification will not: Adversely impact the land on which the minor modification is requested and the surrounding properties; Substantially increase the congestion of buildings, people, or motor vehicles; Endanger public health or safety, or otherwise be materially detrimental to the welfare of nearby neighbors or the public at large; Unduly tax public utilities or governmental services; or Materially injure the enjoyment, use, development, or value of the property in the vicinity.
ii. The property in question will benefit by approval of the minor modification without negatively impacting the neighborhood.
(Ord. 921 - Aug. 17 Supp.)