1111.1705 Approval Criteria.

   Zoning variances shall only be approved when the Board of Zoning Appeals finds substantial evidence in the official record to support at least five of the following findings:

   A.   Unnecessary hardships or practical difficulties apply to the subject land, buildings or uses which are not generally applicable to other land, buildings, structures, or uses in the same zoning district;

   B.   The undue hardship or practical difficulties are not the result of the actions of the property owner or applicant, their agent, employee, or contractor;

   C.   Granting the requested variance will not result in advantages or special privileges to the applicant or property owner that the Zoning Code denies to other land, structures, or uses in the same district, and that the variance is the minimum variance necessary to provide relief;

   D.   The variance, if allowed, will not substantially interfere with or injure the rights of others whose property would be affected by allowance of the variance;

   E.   The variance is not inconsistent with the stated purpose and intent of this Zoning Code (See Section 1101.0400);

   F.   Granting this request will not change or alter the overall image and character of the neighborhood, or introduce new materials or colors that are incompatible with the neighborhood; and

   G.   The variance is not an after-the-fact approval of an intentional violation.

(Ord. 170-04. Passed 3-23-04; Ord. 437-24. Passed 9-11-24.)

1111.1706 Express Limitation of Authority.

   A.   Issues that are under the express jurisdiction of the Plan Commission or applicable Historic District Commission shall not be subject to a variance. When the procedures of the Zoning Code expressly state that decisions of the Planning Director are to be appealed to other review and decision-making bodies, those decisions shall not be subject to a variance.

   B.   The variance does not overrule any decisions of the Plan Commission, applicable Historic District Commission, or City Council on matters over which the Plan Commission or City Council has final decision-making authority under this Zoning Code.

(Ord. 170-04. Passed 3-23-04.)

1111.1707 Findings of Fact.

   All decisions on zoning variances must be supported by an affirmative finding of fact on each of the approval criteria of Section 1111.1705. Findings must be supported by sworn testimony and substantial evidence in the record of proceedings.

(Ord. 170-04. Passed 3-23-04.)

1111.1708 Notice of Decision.

   Within 10 days after a final zoning variance decision is made by the Board of Zoning Appeals, copies of the written decision must be sent to the applicant and filed with the Division of Building Inspection, where it will be available for public inspection during regular office hours.

(Ord. 170-04. Passed 3-23-04; Ord. 510-21. Passed 9-28-21.)

1111.1709 Lapse of Approval.

   A.   An approved variance will lapse and have no further effect one year after its effective date unless:

      1.    A building permit has been issued and construction diligently pursued;

      2.    A Certificate of Use and Occupancy has been issued; or

      3.    The building or structure is established.

   B.   A variance also lapses upon revocation of a building permit for violations of conditions of approval

   C.   A variance lapses if the use has been voluntarily discontinued for a period of two years or more.

(Ord. 170-04. Passed 3-23-04.)

1111.1710 Optional Administrative Procedure.

   A.   Any person seeking a variance has the option of having the variance reviewed by the Commissioner of Building Inspection in lieu of a formal Board of Zoning Appeals' hearing. This administrative review must be conducted in accordance with rules and procedures adopted by the Board of Zoning Appeals.

   B.    The rules and procedures adopted by the Board of Zoning Appeals for the administrative review procedure must include provisions for appropriate public notification and input, including the following:

      1. Mailed notice must be provided in accordance with Section 1111.0300.

      2.   A formal Board of Zoning Appeals hearing must be held in all cases where an affected property owner files an objection to the Commissioner of Building Inspection's decision.

      3. The Board of Zoning Appeals must be notified monthly of cases decided administratively.

   C.   Any person who elects to have their case reviewed by this administrative review procedure may, after receipt of the decision of the Commissioner of Building Inspection, appeal the decision to the Board of Zoning Appeals for a formal hearing. This hearing must be conducted at the next regularly scheduled meeting of the Board of Zoning Appeals, unless the next meeting occurs 7 days or less after receipt of the appeal of the Commissioner's decision, in which case the appeal will be heard at the second next scheduled meeting of the Board of Zoning Appeals.

   D.   The Commissioner of Building Inspection, in exercising the rules and procedures of this administrative review procedure, has the same power as the Board of Zoning Appeals to grant variances.

   E.   This administrative review procedure does not apply to appeals of orders issued by the Commissioner of Building Inspection concerning violations or enforcement of this Zoning Code. Those appeals are subject to a full Board of Zoning Appeals hearing.

(Ord. 170-04. Passed 3-23-04; Ord. 510-21. Passed 9-28-21.)

1111.1711 Transferability.

   The status of a variance is not affected by changes of tenancy, ownership, or management.

(Ord. 170-04. Passed 3-23-04.)