*Editor's note—Ord. No. 1267 repealed and replaced Article VI, Section 2, variances, adopted August 18, 2003 as part of the new zoning ordinance, Ord. No. 969.
A. Generally. A variance modifies the strict application of a particular zoning regulation in unique and individual cases where the application of the regulation would result in a practical difficulty or unnecessary hardship. Variances are to be granted under exceptional circumstances and shall only be for the minimum necessary relief.
B. Applicability.
1. Variances may not be granted to allow a use prohibited or ineligible for a Conditional Use Permit.
2. A variance may be granted for the development standards found within the area regulations of each zoning district that apply to maximum/minimum numerical distances, maximum/minimum numerical quantities, ratios, square footage type standards, and parking standards.
C. Application and Approval Procedure.
1. A property owner may apply to the Board of Adjustment for a variance, using forms available from the Zoning Administrator. Fees, as set forth in the fee schedule adopted by resolution of the City Council, shall accompany the application.
2. Upon receiving a complete application for variance, the Zoning Administrator shall place the application on the Planning Commission's regular agenda.
3. The Planning Commission shall review the variance request, set forth its findings, forward its recommendation to the Board of Adjustment, and set the date of the Board of Adjustment's public hearing.
4. A minimum of ten (10) days prior to the date of the Board of Adjustment's public hearing, the applicant shall post a sign measuring 18 by 24 inches on the property for which the variance is requested, notifying the public of the date and time of the public hearing. The zoning administrator shall provide the applicant with the sign. The applicant shall be responsible for ensuring the sign remains posted on the property until the public hearing is held.
5. Legal notice of the Board of Adjustment public hearing shall be published in the official city newspaper ten (10) days prior to the hearing. The notice shall contain the date, time, and place of the public hearing.
6. The Board of Adjustment shall issue its decision within thirty (30) days of the public hearing. A variance shall be considered approved if the application receives an affirmative vote by a two-thirds (2/3) majority of present and voting members of the Board of Adjustment. As a condition of approval, the Board of Adjustment may impose, consistent with the general purpose and intent of the zoning ordinance, appropriate conditions and safeguards to any variance granted.
7. The decision of the Board of Adjustment shall be documented by written findings of fact and conclusions of law based on the evaluation criteria.
D. Evaluation Criteria. A variance shall be approved only if the applicant is able to satisfy each of the following three (3) criteria:
1. The requested variance is not contrary to the public interest, as determined by the Board of Adjustment. In order to fulfill the public interest, the proposed variance must not:
a. Alter the essential character of the locality; or
b. Endanger public safety.
2. The requested variance must result from special physical conditions on the property, which:
a. Are natural or man-made surroundings, shape, or topographical conditions that do not result from persons presently having an interest in the property; or
b. Because the property is situated within any of the following downtown core neighborhoods and has a lot width of seventy-five feet (75 ft.) or less, or a square footage of less than eight thousand (8,000) square feet:
i. Original Town Plat.
ii. Uhlig Addition.
iii. Ramsdell Addition.
iv. West Addition.
v. Schar's Addition.
3. A literal enforcement of the provisions will result in unnecessary hardship.
a. Because of the special physical conditions of the property, unusual hardship that would serve no public purpose would result to the owner if required to act in strict conformity with the provisions of the zoning regulations and the authorization of a variance is therefore necessary to enable the reasonable use of the property.
b. The hardship must be unique to a particular piece of property to justify a variance, and not shared by all property in a particular zone.
E. Recording. If the variance is granted, the Zoning Administrator shall cause the Resolution approving the variance to be recorded in the Office of the Lawrence County Register of Deeds once a building permit has been issued and construction has commenced. The variance shall thereafter run with the land.
F. Denial. If an application for a variance is denied, reapplication shall not be permitted for a period of one (1) year, unless the Zoning Administrator determines that the nature of the application has materially changed.
G. Expiration.
1. A variance shall automatically expire in one of the following circumstances:
a. A building permit has not been issued within 18 months of the variance approval.
b. A building permit has been issued, but construction has not commenced within one year of permit issuance.
2. This section is expressly made retroactive to apply to variances granted prior to the passage of this Ordinance.
(Ord. No. 1267, 9-18-17)