Any person seeking a modification of the specific requirements of this chapter may apply for a variance by filing a written application to the Building Commissioner.
(A) (1) Use of land variance. Upon receipt of an application for a variance for the use of land (as an example, where the applicant seeks to use land in a R-1 District for uses only authorized in a R-2, or even a C-1 District), the Building Commissioner shall first refer the application to the Plan Commission, who shall investigate as to how the proposed use affects the Master Plan, and if such proposed use is contradictory thereto. In the event that the Commission finds that the proposed variance contradicts the Master Plan, the Commission may, at its option, still recommend the approval thereof to the Board of Zoning Appeals, if the Commission finds such proposed use is not contrary to the spirit and intent of this chapter and does not interfere with future planning on the part of the Commission.
(2) Technical requirement variance. If the application for variance is concerned only with a variance from the technical requirements of the chapter (as an example, a petition to reduce a setback line or to increase the height of a fence and the like), then such variance shall be referred by the Building Commissioner directly to the Board of Zoning Appeals for a public hearing thereon by the said Board, without the same being referred to the Plan Commission.
(B) The applicant for variance may appear before the Commission in support of its issuance, but such appearance will not be mandatory nor will this appearance be considered a public hearing thereon.
(C) The Commission shall report the results of its study to the Board within 45 days following receipt of the application. If no such report has been filed with the Board within this time period, the Board may proceed to process the application.
(D) The Board shall then conduct a public hearing on the application in the manner prescribed by this chapter and the laws of this state.
(E) The Board may authorize, upon appeal, in specific cases, such variances from the terms of this chapter as will not:
(1) Be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the chapter will result in unnecessary hardship and so that the spirit of this chapter shall be observed and substantial justice done;
(2) Provided, however, that the Board shall not be required to specially find, in writing, the facts as stated in division (E)(1) above, but instead that the legal presumption shall be that the criteria were met at the public hearing if the Board, in fact, grants such a variance.
(Ord., § 1-10, passed - -1991)