The Board of Zoning Appeals may authorize upon appeal in specific cases of an area variance from the terms of this Zoning Code as will not be contrary to the public interest according to the following procedures:
(A) Definition. Area variances shall be considered those variances from a zoning regulation that establishes minimum or maximum areas, heights, distances, separation volume or any other measurement, which is expressed in terms of a geometric measurement.
(B) Application requirements. An application for an area variance shall be filed with the Zoning Enforcement Officer for review by the Board of Zoning Appeals upon the forms provided, and shall be accompanied by the following requirements necessary to convey the reason(s) for the requested variance:
(1) Name, address and phone number of applicant(s);
(2) Proof of ownership, legal interest or written authority;
(3) Description of property or portion thereof;
(4) Description or nature of variance requested;
(5) Narrative statements establishing and substantiating the justification for the variance pursuant to division (C) of this section;
(6) Site plans, floor plans, elevations and other drawings at a reasonable scale to convey the need for the variance;
(7) Payment of the application fee;
(8) A list of all property owners lying within 300 feet of any part of the property on which the variance is proposed, including their addresses and permanent parcel numbers; and
(9) Any other documents deemed necessary by the Zoning Enforcement Officer.
(C) Review for completeness. Upon receipt of a written request for an area variance, the Zoning Enforcement Officer shall make a preliminary determination whether such application provides the information necessary for review and evaluation. If it is determined that such application does not provide the information necessary for such review and evaluation, the Zoning Enforcement Officer shall within ten days so advise in writing the applicant of the deficiencies and shall not further process the application until the deficiencies are corrected. If the applicant fails to correct such deficiencies within 20 days of the date of the written notice from the Zoning Enforcement Officer or such reasonable extension granted from the 20 days deadline, then such appeal shall be dismissed as not being timely filed.
(D) Review by the Board. The Board of Zoning Appeals shall hold a public hearing and give notice of the same pursuant to § 153.044. The Board shall review each application for an area variance to determine if it complies with the purpose and intent of this Zoning Code and evidence demonstrates that the literal enforcement of this Zoning Code will result in practical difficulty. The following factors shall be considered and weighed by the Board to determine practical difficulty:
(1) 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 adjacency to non-conforming and inharmonious uses, structures or conditions;
(2) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(3) Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
(4) 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;
(5) Whether the variance would adversely affect the delivery of governmental services such as water, sewer, or trash pickup;
(6) Whether the property owner purchased the property with knowledge of the zoning restrictions;
(7) Whether special conditions or circumstances exist as a result of actions of the owner;
(8) Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
(9) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance; and
(10) 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.
(E) Requests for additional information. The Board of Zoning Appeals may request that the applicant supply additional information that the Board deems necessary to review and evaluate the request for a variance.
(F) 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.
(G) Action by the Board. The Board shall either approve, approve with conditions as specified in division (F) of this section, or disapprove the request for an area variance. In no case shall the Board of Zoning Appeals approve a variance that establishes a nonconforming use of land, building or structure where one had not previously existed.
(H) Term and extension of variance. Area variances shall be non-assignable without the written approval of the Board of Zoning Appeals and shall expire one year from the date of the variance issuance, unless prior thereto, the applicant substantially initiated work within one year in accordance with the granted variance or an extension of time has been granted by the Board of Zoning Appeals. SUBSTANTIALLY INITIATED shall mean expending monies towards completing the project equal to at least 25% of the value of the total work to be performed. A variance shall also expire if the applicant fails to substantially complete the work within two years from the date of the variance issuance. SUBSTANTIALLY COMPLETED shall mean expending monies towards completing the project equal to at least 90% of the value of the total work to be performed. Once the time limit pursuant to this section has expired, a request for a variance shall be considered to be a new application for a variance and shall meet all requirements for application and review pursuant to this section. Area variances approved in conjunction with a site plan shall remain valid for a one-year period.
(Ord. 09-3306, passed 10-15-09)