(a) Collection of Fees. A fee in such amount as may be established by the Council acting by ordinance or resolution shall be paid to the Building Officer for each application for appeal, variance, or conditional use to cover the necessary administrative and advertising costs.
(b) Schedule Public Hearing. Upon receipt from the Building Officer of an application that requires review and hearing by the Board of Zoning Appeals or the Planning and Zoning Commission, the Board or Commission shall schedule a public hearing. Such public hearing shall be no more than forty-five (45) calendar days from the date of such receipt.
(c) Public Notice of Public Hearing in Newspaper: The Board or Commission shall provide public notice of the public hearing. The notice shall be published at least fifteen (15) calendar days before the public hearing in one or more newspapers of general circulation in the City and set forth the time, place, and general nature of the meeting agenda.
(d) Public Notice of Public Hearing via Post: Public notice shall be provided by the Building Officer via First Class Mail at least fifteen (15) calendar days before the public hearing to all property owners of lots within 250 feet of the lot lines of the parcel(s) of concern. Addresses for the property owners shall be acquired by the County Auditor. Failure of delivery of notice does not invalidate said notice. The mailed notices shall include the time, place, and general nature of the public hearing.
(e) Public Hearing.
(1) The secretary shall and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Fiscal Officer, and be a public record.
(2) During the public hearing, each present member of the public may speak at least once per issue to express support or dissent and rationale for such support or dissent.
(3) With permission of the chairperson, a member of the public may speak more than once per issue.
(4) The Board or Commission may pose questions to the applicant, to the Building Officer, or to legal counsel during the public hearing.
(f) Decision Criteria.
(1) Variances. Variances are intended to allow the flexibility necessary to adapt to changed or unusual conditions, both foreseen and unforeseen, under circumstances which to not ordinarily involve a change of the principal use of the land or structure permitted. Variances shall not be granted on the grounds of convenience or reduced or greater profit, and evidence of variances granted under similar conditions elsewhere is irrelevant.
A. Non-numerical variances. In order to grant a variance for a non-numerical standard, the Board must find that the strict application of the Zoning Code would cause the property owner to suffer the loss of all economically viable use of their property. The Board of Zoning Appeals may request that an applicant present a recent and credible appraisal and financial statements to aid in any such determination.
B. Numerical variances. In order to grant a variance for a numerical standard, the Board must find that the strict application of the Zoning Code would create practical difficulties for the property owner. Applications for zoning permits that include numerical variance requests shall include evidence that sufficient practical difficulties exist to warrant a variance. The Board, in determining whether the strict application of the Zoning Code would create practical difficulties for the property owner, shall consider:
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;
3. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
4. Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
5. Whether the property owner purchased the property with knowledge of the zoning restriction;
6. Whether the property owner's predicament feasibly can be obviated through some method other than a variance; and
7. Whether the spirit and intent behind the zoning requirement would be observed, and whether substantial justice would be done by granting the variance.
(2) Conditional Uses.
A. In order to grant a conditional use approval, the Board of Zoning Appeals shall consider whether the proposed use:
1. Contributes to the essential character of the neighborhood;
2. Would likely cause detrimental impact to adjoining properties;
3. Aligns with the intent of the adopted comprehensive plan and other long-range planning publications; and
4. May adversely affect the delivery of governmental services (e.g., water, sewer, garbage).
B. In order to grant a conditional use approval, the Board of Zoning Appeals must find that:
1. The proposed use is a conditional use of the district, and the applicable development standards established in the Zoning Code are met;
2. The proposed development is in accord with appropriate plans for the area; and
3. The proposed development will be in keeping with the existing land use character and physical development potential of the area.
(g) Making a Decision. The members of the Board or Commission shall publicly vote for approval, approval with conditions, or disapproval of the application.
(1) If the Board or Commission votes to approve the application with conditions, the conditions must be intended to be in accord with appropriate plans for the area, and to prevent undesirable effects on adjacent property and the surrounding area. Such conditions may be a limitation on the extent or intensity of development, a requirement for additional screening by fence or landscaping, a change in the method or plan for lighting, control of access or other conditions of development as may be advantageous to the public. Recommendations regarding the modification of plans or other appropriate actions shall be stated with the reasons for each recommendation.
(2) Disapproval of an application must include the reasons for such decision.
(3) For voting to occur, quorum must be reached in the Board of Zoning Appeals or the Commission. If a member abstains from voting on an issue due to conflict of interest or any other reason, that member shall not contribute to the quorum.
(4) If conditions are to be applied to an application approval, the members may, prior to a vote, determine which conditions are to be applied for the intent of clarifying the decision.
(5) A vote for approval, approval with conditions, or disapproval may take place only when a quorum is reached. If a quorum is not reached, the chairperson shall bench the issue and revisit the issue during the next meeting.
(6) The chairperson shall call a vote and the secretary shall keep minutes showing the vote of each member upon each issue or, if absent or failing to vote, indicating such fact.
(7) A decision for approval, approval with conditions, or disapproval shall be established with the vote of a majority of present members. A tie vote shall be interpreted as disapproval.
(h) Delivery of Decision. Within fourteen (14) calendar days after the public hearing, the Board of Zoning Appeals or the Commission shall transmit its decision to the Building Officer for recording, except that, in the case of zoning text or map amendments, the Commission shall transmit its decision directly to Council. If the conditional use approval or variance is granted, the Building Officer shall issue the building permit, with the appropriate conditional use approval or variance, to the applicant within fourteen (14) calendar days of receipt of decision from the Board of Zoning Appeals or the Commission. Such building permit shall be properly recorded with the County Auditor. (Ord. 2022-110. Passed 12-12-22.)