The Board of Zoning Appeals shall have the power, in specific cases, to vary the application of certain provisions of this Zoning Code in order that the public health, safety, convenience, comfort and general welfare may be safeguarded and substantial justice may be done. It is the applicants burden to establish the hardship in each case. The following are reasons to grant a variance:
(a) Where unreasonable hardships would result from the literal application of the provisions of this Code. However, hardships which are unavoidable such as theoretical loss or limited possibilities of economic advantage, are not unreasonable hardships. Likewise, hardship based on conditions created by the owner is not an unreasonable hardship. It must be found that there are peculiar and special hardships as applicable to the property involved which are separate and distinct from general hardships in the district; and
(b) Where exceptional circumstances or conditions, only applicable to the property involved or to the intended use of the property, exist and do not apply to other property within the same district; and
(c) Where granting a variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the neighborhood in which the property is located. The mere existence of an unreasonable hardship or other exceptional circumstance, is not, itself, conclusive evidence for granting of a variance, for such hardship must be balanced against the present conditions and extent to which such a variance would interfere with the rights of adjacent property owners, and the appropriate future development of those properties; and
(d) Where the granting of a variance will not be contrary to the purpose, intent, and objectives of this Code. A variance merely permits that which is contemplated in this Code for unreasonable hardships and exceptional circumstances.
In responding to an area variance (e.g. setbacks, height), it is the applicant's burden to prove that an area zoning requirement unreasonably deprives him of a permitted use of his property, i.e. the owner must show he has encountered practical difficulties in the use of his property. While no single factor controls in determination of practical difficulties, the factors to be considered and weighed include, but are not limited to:
(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;
(7) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
(Ord. 17-1994. Passed 6-6-94.)