4.5.1 Applicability.
A. The decision authority may vary certain requirements of this ordinance in harmony with the general purpose of these regulations, where special conditions applicable to the subject property would make the strict enforcement of the regulations impractical or result in a hardship in making reasonable use of the property.
B. No variance shall be permitted that would have the effect of allowing a use not permitted in the subject zoning district (see use table set forth in Article 7), or a density exceeding the maximum allowed in the subject zoning district.
C. No variance may be granted where explicitly prohibited by this ordinance.
4.5.2. Decision authority. The Board of Adjustment shall be the decision authority for all variance applications.
4.5.3. Pre-application conference. All applicants seeking a variance shall schedule a pre- application conference with the UDO Administrator to discuss the procedures, standards, and regulations required for variance approval in accordance with the provisions of this ordinance.
4.5.4. Application requirements. An application for a variance shall be signed by the owner(s) of the subject property or the owner(s) agent with a valid power of attorney and submitted in accordance with Article 4.1.3 (Application Requirements).
4.5.5. Notice and evidentiary hearings. Once the application has been determined complete, the UDO Administrator shall schedule an evidentiary hearing and give public mailed and posted notice as set forth in Article 4.1.4.
4.5.6 Burden of proof. The applicant seeking the variance shall have the burden of presenting evidence sufficient to allow the decision authority to reach the conclusions set forth below (Findings, Article 4.5.9), as well as the burden of proof on those issues.
4.5.7 Action by the UDO Administrator. The UDO Administrator shall provide the decision authority a copy of the application and all relevant materials pertaining to the request prior to the public hearing.
4.5.8 Action by the decision authority.
A. Each decision shall be accompanied by findings of fact by the decision authority that specifies the reasons for the decision.
B. A decision to approve a variance requires a concurring vote of four-fifths of the members of the decision authority.
C. The decision authority may approve in whole or in part, deny, or continue the request. In granting the variance, the approving authority may prescribe reasonable and appropriate conditions that will ensure that the use will be compatible with adjacent properties and will not alter the character of the neighborhood. Notwithstanding the foregoing, such conditions must be directly related to the impacts of the proposed use and must be roughly proportional to these anticipated impacts.
4.5.9 Findings of fact.
A. In granting any variance, the Board of Adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:
1. Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property;
2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability;
3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship; and
4. The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
B. Any variance granted must be the minimum variance required for reasonable use of the land, building, or structure. The fact that property may be utilized for greater profit, however, is not considered adequate to justify the granting of a variance.
C. Neither the nonconforming use of lands, buildings, or structures in the same zoning district; nor the permitted use of lands, buildings, or structures in other zoning districts; nor personal circumstances may be considered as grounds for the issuance of a variance. Furthermore, mere financial hardship does not constitute grounds for granting a variance.
D. The decision authority’s final decision shall be delivered in writing by personal delivery, electronic mail, or first class mail to applicant.
4.5.10 Effect of approval.
A. The applicant shall file the approved variance with the County Register of Deeds within six months from the date of approval or the variance shall be deemed void.
B. All variances that are granted shall run with the property for which the variance is being sought and not with the owner of the property.
(Ord. passed 2-3-2021)