(A) Intent. To provide a vehicle for relief from the provisions of this Code when strict compliance would cause undue hardship due to unusual circumstances or conditions peculiar to the subject property, such as size, shape, topography, location or surroundings.
(B) Application requirements. An application for a variance shall be made in writing in a form prescribed by the Board of Adjustment and shall be accompanied by:
(1) A non-refundable deposit or fee as set forth by ordinance of the City Council;
(2) A letter of justification describing the proposed project and explaining how it satisfies the conditional findings described in division (F) of this section (See Appendix A);
(3) A conceptual site plan;
(4) A detailed site plan (see Appendix B) may be required by the Board of Adjustment, and shall be required in such cases where an owner of real property located within 500 feet of the property on which the change in classification is proposed makes such written request; and
(5) Any other relevant information requested by the Board of Adjustment in order to properly review the application. Such information may include, but is not limited to plat plans, site building plans, a traffic impact study, contour/drainage maps, a surface geological assessment, or a report of the impact that the variance could have on the environment.
(C) Report of administrative completeness. The City Secretary or city designee shall review each application for administrative completeness. After receipt of a complete application, the City Secretary or city designee shall cause to occur within five working days:
(1) Formal notice to be sent to the applicant stating:
(a) The date on which the application was determined to be administratively complete;
(b) A schedule of review, report and hearing dates to consider action;
(c) That additional requests for other relevant information may be requested at any time during the review process in order to properly review the application. Such information may include, but is not limited to preliminary plat plans, site buildings plans, a traffic impact study, contour maps, or a report of the geological survey impact the variance may have on the environment.
(d) If applicable, whether the requested amendment conforms to the Existing or Future Land Use Map of the City of Sunset Valley Comprehensive Plan; and
(2) Twenty copies of an organized packet of information containing a copy of the application, all application submittals and all correspondence to and from the applicant to be delivered to the City Secretary to be distributed to Members of the Board of Adjustment and Zoning Commission.
(D) On-site inspection. Upon the request of: a) the applicant; b) any member of the Board of Adjustment, Zoning Commission or City Council; or c) a property owner within 500 feet of the subject property, city representatives shall visit the site where the proposed variance will apply and the surrounding area and shall report his/her findings to the Board of Adjustment and the city's other governing bodies.
(E) Hearing and notice. The Board of Adjustment shall hold at least one public hearing on all variance applications in accordance with the procedures for public notice and hearing in § 150.060.
(F) Findings. Findings of the Board, together with the specific facts upon which such findings are based, shall be incorporated into the official minutes of the Board meeting at which such action is taken. The burden of establishing such conditions is on the applicant. No variance shall be granted unless the Board of Adjustment finds that all of the following criteria are met:
(1) Special circumstances or conditions exist such that requiring compliance with the provisions of the applicable zoning provisions of the Code will cause significant practical difficulties to the applicant. Pecuniary hardship to the applicant, standing alone, shall not be deemed to constitute practical hardship.
(2) Special circumstances or conditions affecting the parcel of land exist such that requiring strict compliance with the provisions of this Code will result in one or more of the following:
(a) Depriving the applicant of the reasonable use of his land;
(b) Significant or unreasonable disruption of the natural terrain; or
(c) Significant or unreasonable destruction of the existing flora.
(3) The variance is necessary for the preservation and enjoyment of a substantial property right of the applicant;
(4) There is no practical alternative to the requisite variance that will alleviate the difficulty or hardship complained of or the requisite enhances the quality of the project as a whole and would result in a better project than requiring strict compliance with the provisions of the Code;
(5) The variance will be no greater than the minimum required to alleviate the difficulty or hardship complained of;
(6) The granting of the variance will not be detrimental to the public health, safety or welfare, or materially injurious to other property or improvements in the area;
(7) The granting of the variance will not have the effect of preventing the orderly use of other land in the area in accordance with the provisions of this Code;
(8) The variance is in harmony with the intent of the Code's zoning provisions and with the goals, standards and policies of the City's Comprehensive Plan;
(9) The granting of the variance will not cause an unreasonable obstruction of direct sunlight to adjacent property; and
(10) The proposed variance prescribes only conditions deemed necessary to or desirable in the public interest.
(G) Interpretative rules.
(1) Variances to the zoning provisions in the Code should be granted sparingly.
(2) A variance must be predicated on findings that the applicant's difficulties or hardships arise from unusual conditions or circumstances, such as exceptional irregularity or shape or topography, which are peculiar to the parcel of land involved and not shared generally by other parcels in the neighborhood or district, or because no other reasonable alternative is available.
(3) A variance should be denied if conditions or circumstances relied on for a variance were self-created by the person having an interest in the property.
(4) Lots, structures, uses or dimensional conditions on properties or structures within 200 feet of the subject property that are nonconforming or have been previously granted a variance, and that are similar to the conditions which would be created by the variance requested shall be relevant to, but not determinative of, the granting of the requested variance.
(5) When considering the variance request the Board shall take into account:
(a) Existing and planned development on adjoining and nearby parcels;
(b) Thematic architecture and landscaping;
(c) Location of proposed buildings;
(d) Arrangement of uses proposed on-site;
(e) Access to the project site;
(f) On-site pedestrian and vehicular patterns;
(g) Distribution and amount of parking;
(h) Identification and mitigation of project impacts;
(i) The nature of the proposed use of the land involved;
(j) Existing uses of land in the vicinity;
(k) The number of persons who will reside or work in the proposed use;
(l) The effect upon traffic conditions; and
(m) The effect upon the public health, safety, convenience, welfare, and environment in the vicinity.
(H) Action by Board. The Board of Adjustment shall not grant a variance unless it finds, based on competent evidence, that each of the conditions in division (F) has been established. The Board may, by concurring vote of at least four members of the Board:
(1) Approve the variance request;
(2) Approve the variance request with conditions, limitations and safeguards; or
(3) Deny a variance request.
(I) Conditions Imposed by Board. The Board may impose such conditions, limitations and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation or safeguard shall constitute a violation of this Code. The Board may require reasonable guarantee and evidence that the applicant, or its successors in interest, will satisfy any conditions imposed in connection with approval of a variance. The power to grant variances does not extend to changing a parcel's zoning districts, including the granting or denying of conditional overlays.
(J) Appeal. The Board's decision shall become final on the effective date of its resolution or motion. The action taken by the Board of Adjustment on a variance is final and cannot be reconsidered, unless substantive information which was not available when the Board made its decision is presented which could significantly impact the Board's decision. In accordance with state statute by law, the applicant may judicially appeal the Board's decision in accordance with state law.
(K) Time limits. Unless action is being diligently pursued, any rights authorized by a variance which are not exercised within one year from the date of granting such variance shall be conclusively presumed to have been withdrawn by the applicant.