(a) Use Variances Generally. On a particular property, extraordinary circumstances may exist that make strict enforcement of the applicable requirements of this Code unreasonable. Therefore, a procedure for variance from these requirements is provided to allow the flexibility necessary to adapt to changed or unusual conditions, both foreseen and unforeseen, under circumstances which do not ordinarily involve a change of the primary use of the land or structure permitted. Variances shall be heard by the Board of Zoning Appeals, except in matters of primary and secondary arterials as stated in Section 1232.05 and in matters of Council variances as stated in subsection (c) hereof. In order for the Board of Zoning Appeals to grant a variance, all of the following conditions must exist:
(1) The special circumstances or conditions applying to the building or land in question are peculiar to such lot or property and do not result from the actions of the applicant and do not apply generally to other land or buildings in the vicinity.
(2) Granting the variance requested will not confer on the applicant any special privilege that is denied by this Code to other lands or structures in the same zoning district.
(3) Granting the variance will not adversely affect the health or safety of persons residing or working in the vicinity of the proposed development by material detrimental to the public welfare or injurious to private property or public improvements in the vicinity.
(b) Area Variances.
(1) The following factors shall be considered and weighed in the review and the public hearing of an application for variance.
A. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without a variance;
B. Whether the variance is substantial;
C. Whether the character of the area would be adversely affected or whether adjoining properties would suffer an adverse impact as a result of the variance;
D. Whether the variance would adversely affect the delivery of governmental services (e.g., utilities and refuse collection);
E. Whether the property owner purchased the property with knowledge of the zoning restriction;
F. Whether the property owner's predicament feasibly can be obviated through some method other than a variance; and
G. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
(2) No single factor shall be considered a determinative factor, and the factors shall be weighed and balanced in determining whether a variance is warranted. The applicant shall bear the burden of proof that the criteria for a variance have been met and that application of the zoning requirement to the applicant's property would be inequitable.
(c) Appeal of Administrative Decisions.
(1) Certificate appeal. Any application for a certificate of zoning clearance which has been denied, and any interpretation by the Development Services Director with respect to an order issued pursuant to this Code, shall be subject to appeal to the Board of Zoning Appeals. The Board may uphold, modify or deny the action of the Development Services Director which is taken on appeal. Appeals are intended to address Code interpretation and are not intended to be used in lieu of variances.
(2) Administrative appeal. Appeals to the Board may be taken by any person aggrieved or by any officer of the Municipality affected by any decision of the Development Services Director.
(3) Notice of appeal. Appeals shall be taken within ten days after the decision by filing a notice of appeal, specifying the grounds, with the officer from whom the appeal is taken and with the Board. The officer from whom the appeal is taken shall transmit to the Board all the papers constituting the record upon which the action was taken.
(d) Variances by Ordinance of Council. When a variance from the provisions of this Code is not permitted by the rules herein, Council may consider a variance from such provisions and may, by passage of an ordinance, vary such provisions as Council may deem appropriate in a particular situation. Fees shall be charged to the applicant according to the current fee schedule.
(Ord. 2014-27. Passed 8-5-14.)