(a) Standards. A variance is an authorization granted by the Board of Adjustment with respect to a lot, tract of land, building or structure so as to permit the use of a lot or tract of land, or the construction, reconstruction, maintenance, repair or use of a building or structure, which is otherwise prohibited by this Zoning Code, because the strict application of the Zoning Code would result in peculiar and exceptional practical difficulties to or an exceptional and undue hardships upon the owner of such property and a variance from such strict application would relieve such difficulties or hardship and such relief could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any ordinance or resolution. (§19-910(1))
(b) Filing of Applications. An application for a variance will be heard by the Board of Adjustments only if such application is made:
(1) After the Chief Building Official has denied an application for a building permit or, as the case may be, for a certificate of occupancy, with respect to the proposed use which is the subject of the application for a variance; and
(2) As an incident to an appeal from such a decision as provided in Section 1244.05.
(c) Notice of Variance. Notice of variance to the Board shall be filed as prescribed by the rules of the Board. A fee as set out in the Master Fee Schedule of the City of Sidney shall be paid by the appellant (unless the appellant is the City or an officer of the City) to the Clerk-Treasurer at the time of filing the notice of variance to the Board. Upon the filing of the notice and the payment of the fee, the Secretary of the Board shall inform the City Manager of such filing and payment.
(d) Contents of Applications. Such variance application shall be in writing and filed with the Chief Building Official and the Board of Adjustment, and may either be incorporated in or filed with the copy of the notice of variance filed with the Board. Such application shall state:
(1) The description of the lot, tract of land, building or structure for which the variance is sought;
(2) The name of the owner;
(3) That the Chief Building Official has denied an application for a building permit or, as the case may be, for a certificate of occupancy, with respect to the proposed use which is the subject of the application for a variance;
(4) The nature of the variance sought;
(5) The exceptional practical difficulty or exceptional and undue hardship to be overcome by the granting of such variance;
(6) Such other information as the Board of Adjustment by rule shall require; and
(7) Shall provide a list of the names and addresses, as shown by the tax records in the office of the County Assessor, of the owners of all lots and tracts of land abutting on the sides, in the rear, and directly opposite from appellant's property.
(e) Notice, Hearing. The Chief Building Official shall provide a copy of the application to the Secretary of the Board of Adjustment, as well as all the papers constituting the record upon which the action appealed from was taken, if any. Notice of the time and place of the hearing on the request for variance shall be given by the Secretary of the Board by publication thereof in a paper of general circulation in the City at least one time and at least ten days prior to such hearing. The Secretary of the Board shall serve notice of the hearing upon the owners listed with the application referring to the above, either by personal service, by mailing such notice to them at the addresses shown on the tax records, or by leaving such notice at the last known place of residence. The Board shall provide by rule for the setting of applications for hearings, which rule shall provide for hearings to be held with reasonable promptness.
(f) Expiration. If a variance is granted for a use requiring the construction, modification or alteration of a building or structure for which a building permit is required, the right to such variance shall expire unless the required building permit is issued within six months after the variance is granted.
(g) Building Permits. If the Board grants an application for a variance in a situation in which a building permit is required, such building permit may not be issued until the statutory appeal period of fifteen days from the filing of the decision of the Board has expired. No building permit may be issued;
(1) While an application for a variance is pending before the Board; or
(2) If the Board denies the application, unless the decision of the Board is reversed by a court's decision.
(h) Decision. No such variance shall be authorized by the Board unless it finds that:
(1) The strict application of the zoning regulation would produce undue hardship;
(2) Such hardship is not shared generally by other properties in the same zoning district and the same vicinity;
(3) The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and
(4) The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purpose of convenience, profit or caprice.
(5) No variance shall be authorized unless the Board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring in nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations. (§ 19-910.2)
(i) Voting. The Board of Adjustments is a “quasi-judicial” body; thus, its actions are not subject to review and approval of the governing body. In exercising its powers, the Board may, in conformity with ordinances and state statutes, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of four members of the five-member Board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such regulation or to effect any variation in such regulation or grant or deny a variance. (§19-910(3))
(Ord. 1666. Passed 1-10-12; Ord. 1800. Passed 9-25-18.)