The zoning board, after public hearing and after following the procedures set forth in this section, may grant a variance to the regulations and standards of this title relating to the construction or alteration of structures when in harmony with the general purposes and intent of this title only in the specific situations set forth in this section. In doing so, the zoning board shall make written findings of fact in accordance with the guidelines prescribed in this section and must find that practical difficulties or particular hardships exist which prevent compliance with the strict letter of the regulations or standards of this title.
(A) Submission Of Application/Notice Of Hearing: An application for a variance may be filed by any person having a freehold interest in a parcel of property, or a possessory interest entitled to exclusive possession (with the concurrence of the person holding the freehold interest), or a contractual interest which may become a freehold interest, or an exclusive possessory interest which is otherwise specifically enforceable.
An applicant must submit a variance application with all necessary supporting documentation, including a map or diagram with measurements and specifications, to the zoning officer at least twenty one (21) days prior to the zoning board meeting at which the application will be considered by the zoning board. The applicant must also submit payment of any required fees or costs with the application.
The variance application form shall be available at the village hall during regular business hours or from the zoning officer. The variance application shall be in a form as established by the zoning board. The zoning officer shall provide a copy of the application and supporting materials to each zoning board member at least seven (7) days prior to the zoning board meeting when the application will be considered.
Upon receipt of a variance application, the zoning officer shall set the public hearing on the application on the agenda for the next appropriate zoning board meeting. The zoning officer shall assist the applicant in causing notice of the hearing to be published at least once, not more than thirty (30) days and not less than fifteen (15) days before the hearing, in the "Woodford County Journal", Roanoke-Benson edition, which is circulated in the village of Roanoke. The notice shall set forth the date, time, and place of this hearing, and shall include a description of the particular location for requested variance and a brief statement describing the requested variance. The applicant shall pay the publication cost for this notice in addition to the variance application fee.
If the subject property is located in an R-1 or R-2 residential district, the applicant shall additionally provide notice of the public hearing to all property owners located adjacent and contiguous to the subject property for which the variance is being requested, which shall include property sharing a common corner with the subject property and property only separated from the subject property by a road, street, or alley that is otherwise adjacent and contiguous to or shares a common corner with the subject property, and to all other property owners located within fifty feet (50') of the subject property for which the variance is being requested. If the subject property is located in any other zoning district, the applicant shall provide notice of the public hearing to all property owners located within two hundred fifty feet (250') of the subject property for which the variance is being requested. This notice shall be personally served on said property owner. If personal service cannot be made on a particular property owner, this notice may be mailed to the property owner by certified mail, return receipt requested.
If an applicant or other interested party requests a special meeting of the zoning board to review a variance application or to hold a public hearing thereon, then the cost of said special meeting shall be paid by such requesting person. This cost shall include the salary of each zoning board member and the zoning officer for attending the special meeting.
(B) Permitted Uses Of Adjacent Property: Neither the nonconforming or special use of, or a variance granted for, neighboring lands or structures in the same district or the permitted use of lands or structures in other districts shall be considered as justification or grounds by the zoning board for the issuance of a variance. As such, these other nonconforming or special uses, variances, or permitted uses shall not establish a precedent for granting a future or similar variance.
(C) Standards For Variances: The zoning board shall not grant a variance pursuant to this section unless, based upon all the records and evidence, all the following conditions have been met:
1. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out;
2. The conditions upon which an application for a variance is based are unique to the property for which the variance is sought and are not applicable, generally, to other property within the same zoning classification;
3. The alleged difficulty or hardship caused by this title has not been created by any persons presently having an interest in the property;
4. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located;
5. The proposed variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public street, or increase the danger of fire or endanger the public safety or substantially diminish or impair property values within the neighborhood; and
6. The granting of the variance is in harmony with the general purposes and intent of this title, and will not be in conflict with the village's comprehensive plans for development.
(D) Authorized Variances: A variance from the regulations and requirements of this title shall be granted by the zoning board only in accordance with the standards established in this section and may be granted only in the following instances as set forth below:
1. To permit any yard, setback, or open space requirement that is less than the applicable yard, setback, or open space requirement;
2. To permit the use of a lot or adjacent lots for a use otherwise prohibited solely because of the insufficient area or width of the lot or lots, but in no event shall the respective area and width of the lot or lots be less than ninety percent (90%) of the required area and width (e.g., the minimum lot size in an R-1 residential district is 6,000 square feet in order for a building to be constructed on such lot; thus, under this provision, as long as the lot size is 5,400 square feet or more (90 percent of 6,000), a variance would be permissible);
3. To reduce the applicable off street parking or loading requirements for a specific use whenever the character or use of the structure or property is such that it is unnecessary for the full provision of the parking or loading facilities;
4. To increase by not more than twenty five percent (25%) the maximum distance that required parking spaces are permitted to be located from the use served;
5. To increase the width of driveway or curb cuts in manufacturing districts with respect to access to parking or loading facilities;
6. To permit more than one driveway per residential lot;
7. To permit the variance in number, size (excluding height), or location of an accessory use, accessory area, or an accessory building or structure; and
8. To permit a variance in sign regulations where, due to the unique conditions or nature of the property on which the sign is to be placed, the regulations would be inappropriate, except such variance in the sign regulations shall not be permitted in residential districts.
9. To permit a nonconforming building to be structurally altered or reconstructed within its boundary walls to an extent exceeding, in aggregate cost, twenty five percent (25%) of its fair market value including land value.
10. To permit variance of the regulations pertaining to television discs or satellite antenna dishes.
(E) Hearing Procedures:
1. The chairman (or acting chairman) of the zoning board shall announce the public hearing on the variance.
2. A summary of the variance request shall be provided to the zoning board and the public by the chairman of the zoning board or his designee, which shall include whether proof of publication of the notice for the hearing has been provided and a brief description of both the property and the requested variance.
3. The applicant for the variance shall then be permitted to describe the requested variance and provide any evidence, including testimony of witnesses, to support the variance request.
4. At the conclusion of the presentation of the variance request by the applicant, the chairman shall allow public comment, including evidence and testimony from any opposition to the variance request. Furthermore, any parties opposing the variance request shall be allowed to cross examine any testimony provided by the applicant, and the applicant may likewise cross examine any testimony provided by the opposing party. The chairman may limit opposing parties to one or more representatives during the hearing when appropriate for the proper and efficient conduct of the meeting.
5. During the presentation of evidence and comment in support of or against the variance request, the chairman may allow zoning board members to also ask questions or make comment as the chairman determines to be appropriate.
6. At the conclusion of the presentation of evidence and comment in support of or against the variance request, the chairman shall allow the zoning board to further discuss and deliberate on the decision to grant or deny the variance request.
7. The chairman, or the acting chairman, of the zoning board shall administer oaths to all witnesses testifying at the hearing and may compel attendance of witnesses at the hearing.
8. The zoning board may only grant a variance request upon the concurring vote of a majority of the zoning board members present provided a quorum exists to conduct the hearing.
(F) Variance Request Approval: The zoning board may grant a variance contingent upon the acceptance of certain conditions or restrictions as imposed by the zoning board to protect neighboring property or carry out the general purposes and intent of this title. These conditions or restrictions shall be set forth in writing along with the zoning board's finding of fact for the variance application.
If a variance request has been approved by the zoning board pursuant to this section, the person who made the variance request must begin construction, or cause construction to begin, on the project within one hundred twenty (120) days of the date when the variance request was granted by the zoning board. Failure to comply with this one hundred twenty (120) day requirement for any reason shall result in automatic revocation of the variance. If a variance is revoked, the person making the variance request must submit a new application and pay all related fees in order to gain further approval of the variance request. The approval of the initial variance request shall have no effect and shall be no guarantee of approval of a subsequent similar variance request. (Ord. 2004-16, 9-7-2004)