§ 152.122  VARIANCES.
   (A)   General. The Board of Zoning Appeals may authorize upon appeal in specific cases variances from the terms of this chapter when because of special conditions a literal enforcement of this chapter would result in unnecessary hardship upon a specific property. No conforming use of neighboring lands, structures, or buildings in the same district, and no permitted nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for issuance of a variance.
   (B)   Definitions of variance. Two types of variances may be granted by the Board of Zoning Appeals. They are as follows:
      (1)   Dimensional variance.  Designed to adjust the regulations of the zoning ordinance to the land for which the variance is granted. Generally speaking, a dimensional variance applies to a bulk, height, area, or space requirement of the zoning ordinance. The primary basis for granting a dimensional variance is the showing by the applicant that a “practical difficulty” exists if the letter of the law is strictly applied. Once granted, a dimensional variance shall run with the land. A dimensional variance shall not be required to obtain a building permit for a residential accessory building or structure (such as a garage or carport) where a principal residential structure already exists and is in use, but that all other terms and conditions of this chapter shall apply.
      (2)   Use variance.  Serves a different function than a dimensional variance. If a zoning ordinance is valid in general, but confiscatory as applied to a specific property, the traditional remedy is a use variance. A use variance grants permission for a prohibited use in a given zoning district. The primary basis for granting a use variance is the showing by the applicant that an “unnecessary hardship” exists if the letter of the law is strictly applied. When granted, a use variance runs with the applicant (tenant or landlord), not with the land itself.
   (C)   Revocation of a dimensional variance. A dimensional variance shall be deemed automatically null and void if the property, building, or structure for which the variance was granted is for any reason demolished or destroyed. Thus, a new replacement building or structure may be required to conform to regulations in effect at that time. The granting of a dimensional variance becomes official only upon issuance of an improvement location permit for the subject property. The issuance of the permit must occur within 90 days from the date that the improvement location permit is obtained or the permit shall become null and void.
   (D)   Revocation of a use variance.  A use variance shall be deemed automatically null and void under any or all of the following conditions:
      (1)   If the use for which the variance was granted ceases for any continuous period greater than six months in length;
      (2)   If the property or structures for which the variance was granted change ownership or occupancy;
      (3)   If the applicant to whom the variance was granted fails to comply with any of the conditions made a part of the variance;
      (4)   If the Board of Zoning Appeals discovers at some future date that the variance has created some previously unforeseen problem, nuisance, or hazard that is adversely affecting the health, safety, or welfare of adjacent properties or the general public.
   (E)   Revocation procedures. Procedures for revocation of a variance shall be as follows:
      (1)   Upon determination by the Zoning Administrator that possible grounds for revocation of a variance exists, the mater shall be placed on the Board of Zoning Appeals agenda for a public hearing;
      (2)   The original applicant to whom the variance was granted or his or her successor shall be notified by certified mail of the reasons for the possible revocation at least 30 days prior to the public hearing;
      (3)   Notice of the public hearing shall also be given as set out in § 152.124.
   (F)   Application standards for a variance. A variance from the terms of this chapter shall not be granted by the Board of Zoning Appeals unless and until a written application for a variance is submitted to the Zoning Administrator and the Board of Zoning Appeals containing:
      (1)   Name, address, and phone number of applicant;
      (2)   Any application filed by any person other than the legal owner of the real estate involved shall be accompanied by a written statement of such legal owner consenting to the filing of such application;
      (3)   Legal description of nature of variance requested;
      (4)   Description of nature of variance requested;
      (5)   A narrative statement demonstrating that the requested variance conforms to each of the following standards:
         (a)   That special conditions and circumstances exist which are peculiar to the land, structure, or buildings in the same district;
         (b)   That a literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;
         (c)   That special conditions and circumstances do not result from the action of the applicant;
         (d)   That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings.
      (6)   There shall accompany such application for a variance a verified statement (affidavit) by the applicant that adjoining property owners were notified in writing at least 15 days prior to the date of the public hearing of such application as required by § 152.124;
      (7)   Any applicant shall furnish a verified proof (affidavit) of at least one publication of a notice in at least one newspaper having general circulation within the town consistent with the requirements of § 152.124;
      (8)   The cost of legal advertising any required notice to affected property owners shall be borne by the petitioners.
   (G)   Considerations prior to granting a variance. Prior to granting a variance, the Board of Zoning Appeals shall consider the following conditions:
      (1)   The variance must not be injurious to the public health, safety, and welfare of the town;
      (2)   The use or value of adjacent property must not be adversely affected by the variance;
      (3)   The need for a variance must arise from some condition peculiar to the property involved and must not exist in similar property in the same district;
      (4)   Undue hardship as a result of strict application of the chapter must be proven. Literal interpretation of the provisions of this chapter must be shown to deprive the applicant of rights commonly enjoyed by other properties in the same zoning district;
      (5)   The hardship must not be self-imposed from previous actions. It should not be a purely financial hardship or a matter of convenience;
      (6)   The variance granted is the minimum variance that will make it possible to reasonable use the land or structure.
   (H)   Supplementary conditions and safeguards. Under no circumstances shall the Board of Zoning Appeals grant an appeal or variance which allows a use not permissible under the terms of this chapter in the district. The Board of Zoning Appeals may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of these conditions and safeguards when made a part of the terms under which the appeal or variance is granted, shall be deemed a violation of this chapter and punishable under § 152.999.
   (I)   Public hearing for appeal and variance. The Board of Zoning Appeals shall hold a public hearing within a reasonable length of time after a receipt of an application for an appeal or variance for the applicant, but only after assuring itself that legal advertisement and interested party notification requirements as set out in § 152.124(B) and (C) have been met. However, the public hearing shall not be held sooner than 15 days after its receipt.
   (J)   Action by the Board of Zoning Appeals. Within a reasonable length of time after the public hearing required in division (I) above, the Board of Zoning Appeals shall either approve, approve with conditions and safeguards, or disapprove the request for an appeal or variance. Furthermore, the Board shall demonstrate that the reasons set forth in the application justify the granting of a variance to make a reasonable use of the land or buildings possible.
(Ord. 172, §§ 4-300 - 4-309, passed 4-5-90; Am. Ord. 216, passed 5-8-95)