The Zoning and Building Standards Board of Appeals is established by the City Charter to hear and decide appeals for exceptions to and variances from the application of ordinances, orders or regulations of officials or agencies governing building and zoning in the Municipality in conformity with the intent and purposes thereof, and in conformance with the procedures established in this Title. With reference to this Planning and Zoning Code, the Board of Appeals is a body of limited jurisdiction with the following specific powers and duties:
(a) Upon appeal by the owner of record title from an adverse decision, the Board of Appeals shall decide any question involving an interpretation of any provision of this Code, provided that the following standards are not exceeded:
(1) Upon appeal by the property owner from the provisions of this Code relating to the number of off-street parking spaces, a variance may be granted on the minimum number of off-street parking spaces required, but such variance shall not exceed more than twenty-five percent of such requirement.
(2) Upon appeal by the property owner from the provisions of Section 772.06 relating to the height of a garage door, a variance may be granted on the height of the door, but such variance shall not exceed eighteen inches of such requirement.
(3) Upon appeal by the property owner from the provisions of Chapter 770 relating to any dimensional limitation (i.e. linear, square footage, percent of an area, etc.), a variance may be granted but shall not exceed fifteen percent of such dimensional limitation. Furthermore, in variance appeals from the provisions of Chapter 770 that present conflicts, whichever restriction(s) are more restrictive or impose higher standards shall govern.
(b) Upon appeal from a decision of the Zoning Administrator denying an application for a building permit or certificate of occupancy, the Board of Appeals may vary or adapt the strict application of any of the requirements of this Code in the case of exceptionally irregular, narrow, shallow or steep lots, riparian and/or wetland area function, or other exceptional physical conditions, when strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other cases. Loss of profit and financial difficulties are not hardships. No variance shall be granted by the Board of Appeals unless it finds:
(1) That there are special circumstances or conditions, fully described in the findings of the Board of Appeals, applying to such land or building and not applying generally to land or buildings in the neighborhood, and that said circumstances or conditions are such that strict application of the provisions of this Code would deprive the applicant of the reasonable use of such land or building.
(2) That, for reasons fully set forth in the findings of the Board of Appeals, the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board of Appeals is the minimum variance that will accomplish this purpose.
(3) That the granting of the variance will be in harmony with the general purpose and intent of this Code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
In granting any variance, the Board of Appeals shall prescribe any conditions that it deems to be necessary or desirable.
(c) Upon appeal from a decision of the Zoning Administrator denying an application for a building permit or certificate of occupancy, the Board of Appeals may vary or adapt the strict application of Chapter 780 when strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other cases. Loss of profit and financial difficulties are not hardships.
(1) In making a variance determination, the Board of Appeals shall consider the following:
A. Varying the front, rear and side yard setback before the riparian and wetland setbacks are varied. The structure's overall footprint shall not exceed what would be permitted on the property if the riparian and wetlands setback were not in effect.
B. Variances should not be granted for asphalt or concrete paving in the riparian and wetland setbacks in any situation where gravel or porous pavement (i.e., porous pavers, and similar products) in accordance with Building Code.
(2) In making a variance determination, the City of South Euclid may consider the following:
A. The soil type natural vegetation of the parcel, as well as the percentage of the parcel that is in the 100-year floodplain. The criteria of the City of South Euclid's flood damage prevention regulations may be used as guidance when granting variances in the 100-year floodplain.
B. The extent to which the requested variance impairs the flood control, soil erosion control, sediment control, water quality protection, or other functions of the riparian and/or wetland area. This determination shall be based on sufficient technical and scientific data and written approval of such determination from the City Engineer or designee.
C. The degree of hardship this regulation places on the landowner, and the availability of alternatives to the proposed activity.
D. Soil disturbing activities permitted in a riparian and/or wetland setback through variances should be implemented in order to minimize clearing to the extent possible, and to include Best Management Practices necessary to minimize soil erosion and maximize sediment control.
E. The presence of significant impervious cover, or smooth vegetation such as maintained lawns, in riparian setback areas compromises their benefits to the City of South Euclid.
F. A reduction in storm water infiltration into the soil in wetland areas will occur.
G. A requested above ground fence does not increase the existing area of mowed grass or lawn.
H. Modifying parking requirements before varying the riparian setback.
I. Modifying building shape, size or design to avoid or minimize intrusion into the riparian setback.
J. In the case of a lot made unbuildable by Chapter 780, consider the minimum variance needed to make it buildable for an appropriately sized and compatibly designed structure, while following the guidance provided in this section.
K. Whether the variance will increase the likelihood for flood or erosion damage to either the applicant's property or to other properties.
L. Culvert of watercourses should be avoided.
M. Whether the variance will result in the need for artificial slope or bank stabilization measures that could interfere with the function of the riparian zone.
(3) When a variance is granted that results in a loss of riparian or wetland function, that loss must be mitigated according to the following:
A. If the loss will result in increased flooding, stream bank erosion, or in-stream sedimentation, the loss shall be mitigated at the site or upstream of the site in the same watershed.
B. If biological functions are the only loss, mitigation will occur upstream whenever feasible; if not, a downstream site will be sought. If no suitable mitigation sites can be found on the affected stream, a site located anywhere in the Community shall be selected.
C. All wetland losses must be mitigated upstream of the disturbed location.
D. Mitigation of riparian and wetland setback losses shall consist of a minimum of 150% of the area disturbed by the variance granted.
E. Mitigation of actual wetland losses shall be at the rate of 150% of the area lost by the variance granted.
F. Mitigation of wetland setback losses can occur at any previously impacted site in the community or in an upstream tributary area outside of the community.
G. Prior to granting any variance that results in a loss of riparian or wetland function or wetland area, the applicant must submit a statement that identifies all requested losses, an evaluation of mitigation needs, and documentation of the planned mitigation to offset the losses; this statement will be submitted to Ohio EPA as part of the Community's Annual Storm Water Program Report.
H. Prior to granting any variance that results in a loss of riparian or wetland function or wetland area, the applicant must submit a statement that legally binds the applicant to complete, at his or her personal expense, any future mitigation, and to pay any penalties or fines that may be assessed or assigned to the community by any regulatory authority relative to the granting of any of the applicant's requested variances under this section.
I. Completion of all mitigation projects resulting from the granting of variances under this section shall be completed before any construction or maintenance guarantee for the project can be released.
(d) The Board of Appeals shall not have jurisdiction to hear an appeal or grant a variance in the following cases:
(1) From the uses specifically permitted in each zoning district except as may be provided in this Title;
(2) From the decision of the Planning Commission or Council regarding any conditional use;
(3) From the decision regarding a subdivision or application for a subdivision unless the Planning Commission grants permission for the applicant to submit a request for a variance to the Board of Appeals after the Planning Commission makes its recommendation;
(4) From the decision regarding a conditional use or application for a conditional use unless the Planning Commission grants permission for the applicant to submit a request for a variance to the Board of Appeals after the Planning Commission makes a recommendation and before Council takes action;
(5) From any decision of the Architectural Review Board, as provided for in this Code.
(e) The Board of Appeals shall not take any action which would effect a change in any district boundary.
(f) The Board of Appeals shall hold public hearings in accordance with the provisions of this Title.
(g) (1) A quorum shall consist of three members, and the concurring vote of three members of the Board of Appeals shall be necessary to decide any appeal or grant any variance. If the Board of Appeals shall fail to take action within 45 days after completion of the hearing, the determination of the Zoning Administrator shall be final and the appeal or variance denied.
(2) A member of the Board of Appeals shall not be qualified to vote if he or she has a direct or indirect interest in the issue appealed or the variance being considered.
(h) The Board of Appeals shall subpoena and require the attendance of witnesses at meetings or hearings, administer oaths, compel testimony and produce reports, findings and other evidence pertinent to any issue before the Board of Appeals.
(Ord. 9-01. Passed 5-14-01; Ord. 49-03. Passed 9-22-03; Ord. 72-06. Passed 6-11-07; Ord. 41-07. Passed 6-9-08; Ord. 01-17. Passed 12-27-18.)