The Zoning Board of Appeals shall have all powers and duties granted by state law and by this ordinance to such boards, including the following specific powers:
A. Ordinance interpretations.
1. Interpret the ordinance test and map and all matters relating thereto whenever a question arises in the administration of this ordinance as to the meaning and intent of any provision or part of this ordinance. Any text interpretation shall be narrow and in a manner as to carry out the intent and purpose of this ordinance. Interpretations shall not have the effect of amending the ordinance.
2. Map interpretations should be based on the rules of the ordinance (Article 2) and any relevant historical information.
B. Appeals of administrative decisions.
1. To hear and decide appeals where it is alleged by the appellant that there is error in any order, interpretation, requirement, permit, decision or refusal made by the Zoning Official in enforcing any provision of this ordinance.
C. Modification and variance of ordinance requirements.
1. To hear and decide on all matters referred to it or upon which it is required to pass under this ordinance.
2. Permit such modification of the height, placement and area regulations as may be necessary to secure an appropriate improvement of a lot which is of such shape or so located with relation to surrounding development or physical characteristics that it cannot otherwise be appropriately improved without such modification.
3. Permit the modification of the automobile parking space or loading space requirements where, in the particular instance, such modifications will not be inconsistent with the purpose and intent of such requirement.
4. Modify the environmental provisions of Article 24, including walls, buffering, screening or landscaping, provided the spirit and intent of Article 24 is upheld.
5. Modify the requirements under section 28.00, subparagraph H, if the Zoning Board of Appeals finds that the intended function of the antenna would be adversely affected, in some significant way, if the antenna had to be constructed in accordance with the other provisions of that section, or the variance is necessary to harmonize the city’s ordinances and federal laws, rules or regulations. A variance under this section does not require a showing of hardship or practical difficulty.
6. To grant variances to the provisions of this ordinance where there are practical difficulties or unnecessary hardships within the meaning of state law and this article in the way of carrying out the strict letter from this ordinance so that the spirit of the ordinance will be observed, public safety and welfare secured, and substantial justice done in accordance with the applicable standards set forth below. In the consideration of all appeals and proposed variances to this ordinance, the Zoning Board of Appeals shall, before granting any variance in a specific case, first determine that the proposed variance will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets, or increase the danger of fire or endanger the public safety or unreasonably diminish or impair established property values within the surrounding area or in any other respect, impair the public health, safety, comfort, morals or welfare of the city's inhabitants.
a. Standards for Approval of a Non-Use Variance. The Zoning Board of Appeals may grant a non-use variance to provide relief from a specific standard in this ordinance relating to an area, dimension or construction requirement or limitation upon the concurring vote of a majority of the members of the Zoning Board of Appeals. A non-use variance shall not be granted unless the Zoning Board of Appeals finds that there is a practical difficulty in the way of carrying out the strict letter of this ordinance. In determining whether a practical difficulty exists, the Zoning Board of Appeals must find that:
(i) Compliance with the strict letter of the restrictions governing area, setbacks, frontage, height, bulk, lot coverage, density or other dimensional or construction standards will unreasonably prevent the owner from using the property for a permitted purpose or will render conformity with such restrictions unnecessarily burdensome;
(ii) The grant of a variance will do substantial justice to the applicant as well as to other property owners in the district and a lesser variance will not give substantial relief to the applicant as well as be more consistent with justice to others property owners in the zoning district;
(iii) The plight of the applicant is due to unique circumstances of the property;
(iv) The problem is not self-created;
(v) The spirit of the ordinance will be observed, public safety and welfare secured, and substantial justice done; and
(vi) There is compliance with the standards for discretionary decisions as contained in paragraph D below.
b. Standards Applicable to Use Variances. The Zoning Board of Appeals may grant a use variance to authorize a land use which is not, otherwise, permitted by this ordinance in the district where the property is located upon the concurring vote of five members of the Zoning Board of Appeals. An application for use variance shall not be submitted or considered unless the applicant has (i) received a written determination from the Office of Planning and Zoning that the proposed land use is not permitted under this ordinance in the district where the property is located, or (ii) received a final decision from the City Council denying a rezoning of the property to a zoning district where the proposed land use would be permitted under this ordinance. A use variance shall not be granted unless the Zoning Board of Appeals finds on the basis of substantial, competent and material evidence presented by the applicant, that there is an unnecessary hardship in the way of carrying out the strict letter of this ordinance. In determining whether an unnecessary hardship exists, the Zoning Board of Appeals must find that:
(i) The property in question cannot be reasonably used or cannot yield a reasonable return on a prudent investment if the property were to be used only for a purpose allowed in the zoning district where the property is located;
(ii) The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions;
(iii) The use to be authorized by the variance will not alter the essential character of the area and locality;
(iv) The problem is not self-created;
(v) The spirit of this ordinance will be observed, public safety and welfare secured, and substantial justice done; and
(vi) There is compliance with the standards for discretionary decisions as contained in paragraph D below.
c. An application for approval of a variance shall not be processed or placed on an agenda for a public hearing, if a public hearing is required for approval under the Zoning Ordinance, if the site and/or building for which the variance is sought is subject to any outstanding, unresolved Property Maintenance Code violation. Any outstanding Property Maintenance Code violation must be first resolved by correcting the violation or by having the applicant/property owner sign a written code compliance agreement with the City setting forth a written commitment by the applicant/property owner to bring the site and/or building into full compliance with all provisions of the Property Maintenance Code within a specific time period acceptable to the City Development Director.
D. Discretionary Standards. For decisions of the Zoning Board of Appeals referred to in paragraphs a and b above, and in all other instances in this ordinance where discretionary decisions must be made by a board, commission or official, the requirements and standards as particularly set forth in this ordinance, concerning the matter for a decision shall be followed and such discretionary decision shall also be based upon the findings that the building structure or use which is the subject of the approval will, when approved:
1. Promote the intent and purpose of this ordinance;
2. Be designed, constructed, operated, maintained and managed so as to be compatible, harmonious and appropriate in appearance and in operation with the existing or planned character of the general vicinity, adjacent uses of land, the natural environment, the capacity of public services and facilities affected by the building structure or land use, and the community as a whole;
3. Be served adequately by essential public facilities and services, such as highways, streets, police and fire protection, drainageways, refuse disposal or that the persons or agencies responsible for the establishment of the building structure, land use or activity shall be able to provide adequately any such service sufficiently;
4. Not be detrimental, hazardous, or disturbing to existing or future neighboring uses, persons, property or the public welfare; and
5. Not create additional requirements at public cost for public facilities and services that will be detrimental to the economic welfare of the community.
E. Time limitations. If the Zoning Board of Appeals approves a variance, the variance shall remain in effect only so long as the facts and circumstances as presented to the Zoning Board of Appeals and upon which the variance was granted continue to exist and that the conditions attached to the approval are satisfied and maintained. The variance shall lapse unless application for a required special land use, building permit, site plan approval, zoning compliance or other required permits, which utilize the variance is made and received by the city not later than one year of the date written notice of the Board's decision is sent to or delivered to the petitioner, or the date the minutes of the Board are approved relating to the Board's final decision on the variance request, whichever occurs first, unless the Board establishes a different time period, or unless an extension is granted as authorized by this paragraph. If a written request for a time extension based upon good cause is received prior to the expiration of the specified time period, the Office of Planning and Zoning may grant an extension under such terms and conditions and for such period of time not exceeding six months as it shall determine to be necessary and appropriate. If the variance has lapsed and the petitioner desires to proceed using the benefit conferred by the variance, the petitioner must reapply for the variance and demonstrate that all of the requirements for approval of a variance have been met, based upon the facts and circumstances in existence at the time the new request is submitted. The Board shall have the right to deny a variance if the facts and circumstances pertaining to the request have changed, if the petitioner is not willing to satisfy the conditions attached to the original approval, or if the petitioner has not affirmatively demonstrated that all of the substantive requirements for the approval of a variance have been satisfied as of the time the new application for variance is considered.
F. The City Council shall have the authority to approve variances or modifications of the standards of the Zoning Ordinance if the variance or modification was considered and approved by the City Council:
1. As part of a Planned Unit Development project under Section 22.03;
2. As a development pursuant to a conditional rezoning approved by the City Council under Section 32.00 C. 4. and H.; or
3. As a development pursuant to a consent judgment approved by the City Council. The City Council shall have the same authority with respect to considering and approving such requests as the Zoning Board of Appeals.
(Ord. No. 278-U, § 19, 1-6-98; Ord. No. 278-CC, §§ 18, 19, 20, 6-3-03; Ord. No. 278-FF, § 4, 5-3-05; Ord. No. 278-NN, § 34, 1-6-09; Ord. No. 278-RR, § 5, 10-18-11)