The Board of Zoning Appeals may authorize upon appeal in specific cases a variance from the terms of this Development Code, based upon the standards set out in sub-section 1133.17(c), Review by the Board, as will not be contrary to the public interest according to the following procedures:
(a) Application Requirements. An application for a variance shall be filed with the Zoning Administrator for review by the Board of Appeals upon the forms provided, and shall be accompanied by the submission requirements in Section 1137.19
, Submission Requirements for Variance Requests.
(b) Review for Completeness. Within ten (10) days after receiving an application for variance, the Zoning Administrator shall review the submitted application for completeness and compliance with the applicable submission requirements. If the application is deemed insufficient, the Zoning Administrator shall notify the applicant of the necessary changes or additional information needed. When the application is deemed complete and the application fee has been paid, the Zoning Administrator shall officially accept the application for consideration of the action(s) requested on the date such determination is made and place it on the Board of Appeals' agenda.
(c) Review by the Board. According to the procedures established for appeals in Sections 1133.05
, 1133.07
, and 1133.13
, the Board of Appeals shall hold a public hearing and give notice of the same. The Board of Appeals shall review each application for a variance to determine if it complies with the purpose and intent of this Development Code and evidence demonstrates that the literal enforcement of this Development Code will result in practical difficulty or unnecessary hardship. The Board shall not grant a variance unless it shall, in each case, make specific findings of fact directly based upon the particular evidence presented to it from the factors below.
(1) Area Variance. The following factors shall be considered and weighed by the Board to determine practical difficulty:
A. Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district. Examples of such special conditions or circumstances are exceptional irregularity; narrowness, shallowness or steepness of the lot; or proximity to non-conforming and inharmonious uses, structures or conditions;
B. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
C. Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
D. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
E. Whether the variance would adversely affect the delivery of governmental services, such as water, sewer, or trash pickup;
F. Whether the property owner purchased the property with knowledge of the zoning restrictions;
G. Whether special conditions or circumstances exist as a result of actions of the owner;
H. Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
I. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance;
J. Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district; and,
K. Whether a literal interpretation of the provisions of this Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Code.
(2) Use Variance. In order to grant a use variance, the Board of Appeals shall determine that strict compliance with the terms of this Code will result in unnecessary hardship to the applicant. The applicant must demonstrate such hardship by clear and convincing evidence that all of the criteria in sub-section 1133.17
(c)(2) A. are satisfied. The applicant may further demonstrate hardship by use of the criteria in 1133.17 (c)(2) B.
A. The applicant shall demonstrate hardship with the following:
i. The variance requested stems from a condition that is unique to the property at issue and not ordinarily found in the same zone or district;
ii. The granting of the variance will not have any material adverse affect on the rights of adjacent property owners or residents;
iii. The granting of the variance will not have any material adverse affect on the public health, safety or general welfare of the City of Rocky River;
iv. The variance will be consistent with the general spirit and intent of the Code; and,
v. The variance sought is the minimum that will afford relief to the applicant.
B. The applicant may submit evidence and the Board of Appeals may also consider:
i. Whether the property cannot be put to any economically viable use under any of the permitted uses in the zoning district in which the property is located; and,
ii. Whether, and the extent to which (if applicable), the hardship condition is not created by actions of the applicant.
(d) Requests for Additional Information. The Board of Appeals may request that the applicant supply additional information that the Board of Appeals deems necessary to review and evaluate the request for a variance.
(e) Additional Conditions and Safeguards. The Board may further prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of the regulation(s) or provision(s) to which the variance applies will be met. Violation of such conditions and safeguards, when made a part of the terms under which the appeal or variance is granted, shall be deemed a violation punishable under Chapter 1141, Enforcement and Penalties.
(f) Action by the Board. The Board shall act according to the procedures established for appeals in this Chapter.
(1) The Board shall either:
A. approve,
B. approve with supplementary conditions, or
C. disapprove the request for appeal or variance.
(2) The Board shall further make specific findings of fact based directly on the particular evidence presented that the reasons set forth in the application and as presented by the applicant during the public hearing, justify the granting of the request that will make possible a reasonable use of the land, building, or structure.
(3) The Board shall have the power, in specific cases, to vary the application of certain provisions of this Code in order that the public health, safety, morals and general welfare may be safeguarded and substantial justice done.