(a) Authorization. The Appeals Board may authorize variance from the terms of this Zoning Code only in those specific instances enumerated in Section 1137.08(e) of this Zoning Code and then only when the Appeals Board has made findings of fact, based upon the standards set out in Section 1137.08(f) of this Zoning Code that owing to special conditions a literal enforcement of the provisions of this Zoning Code will result in practical difficulties or unnecessary hardship for the owner, lessee, or occupant of land or structures. The Appeals Board is without authority to consider variances within Planned Development (PD) zoning districts, because the Planning Commission maintains continuing jurisdiction over such districts once they are established. Accordingly, any proposed variations from the approved final development plan and record plan must be approved through the PD approval process as a major or minor change and not by variance.
(b) Application. An application for a variance shall be filed in duplicate with the Secretary of the Appeals Board. Such an application shall not be filed until a Zoning Certificate has been applied for and refused by the Zoning Administrator. The application shall contain the following information as well as such additional information as may be prescribed by general rule of the Appeals Board:
(1) Description of property and nature of variance:
A. The nature of the variance, including the specific provisions of this Zoning Code from which the variance is requested;
B. A description sufficient to identify the property, including a reference of the volume and page of the last recorded deed;
C. A statement of the special circumstances or conditions applying to the land or structure and not applying generally throughout the neighborhood or zoning district;
D. A statement showing that the special conditions and circumstances do not result from the actions of the applicant;
E. A statement showing that the granting of the variance is necessary to the preservation and enjoyment of substantial property rights;
F. An accurate list of the names and current tax mailing addresses of all owners of property within a radius of two hundred fifty (250) feet from the subject property; and
G. Such other information regarding the appeal as may be pertinent to appropriate action by the Board of Zoning Appeals.
(2) Plot plan. The application shall be accompanied by one (1) copy of a plot plan drawn to an appropriate scale showing the following:
A. The boundaries and dimensions of the lot;
B. The size and location of existing and proposed structures;
C. The proposed use of all parts of the lot and structures, including access ways, walks, off-street parking, loading spaces and landscaping;
D. The relationship of the requested variance to the standards set by this Zoning Code;
E. The use of land and location of structures on adjacent property.
(c) Recommendation of Zoning Administrator. The Zoning Administrator shall provide findings of fact and make recommendations to the BZA.
(d) Hearing. The Appeals Board shall hold a hearing on an application for a variance within thirty (30) days after the application has been filed unless otherwise agreed by the applicant. Public notice of such hearing shall be published at least once in a newspaper of general circulation in the City not less than five (5) nor more than twenty (20) days before such hearing. Such notice shall contain the date, time, and place of the hearing, and a brief description of the relief sought. Written notice shall be given at least five (5) days before the hearing to owners of property abutting the applicant's property and owners of property directly across any street or alley, as they appear on the application. The Appeals Board may give such additional notice as it may from time to time by general rule provide. Any party in interest may appear and be heard at the hearing in person or by agent.
(e) Authorized Variances. Variances from the regulations of this Zoning Code shall be granted by the Appeals Board only in accordance with the standards set out in Section 1137.08(f) of this Zoning Code and may be granted only in the following instances, and in no case shall the Appeals Board have authority to grant variances as to use:
(1) To vary the applicable lot size requirements.
(2) To vary the applicable bulk regulations, including maximum height, lot coverage, and floor area ratio, transitional yards, and minimum yard requirements.
(3) To vary the applicable off-street parking and off-street loading requirements contained in this Zoning Code.
(4) To vary or make interpretations regarding the sections of this Zoning Code dealing with the following subjects wherever the provisions of this Zoning Code constitute unnecessary hardship upon the property owner, provided such variance shall remain in harmony with the general purpose and intent of this Zoning Code: signs, general provisions, home occupations, accessory uses, and temporary uses and nonconformities.
(Ord. 27-2008. Passed 3-16-09.)
(f) Standards for Variances.
(1) The Appeals Board shall not grant a variance as authorized in Section 1137.08(e) of this Zoning Code unless it evaluates the proposed variance in view of the following criteria, and makes written findings of fact as to these criteria and any other matters that the Board may find relevant. Variances shall be granted only upon a determination that practical difficulties exist with respect to the property in question that would render strict application of the Zoning Code inequitable. In determining whether practical difficulties exist sufficient to warrant a variance, the Appeals Board shall consider and weigh the following factors:
A. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
B. Whether the variance is substantial;
C. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
D. Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
E. Whether the property owner purchased the property with knowledge of the zoning restriction;
F. Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
G. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
H. Practical difficulty asserted by the applicant is not similarly existing on nearby properties or commonly occurring within the City.
I. The practical difficulty was not created by the acts or omissions of any current legal or equitable owner, or by the unlawful acts of any prior owner.
J. Approval of the requested variance will not materially damage the public health, safety, morals, convenience, comfort, prosperity, or general welfare, and adjoining properties will not suffer substantial detriment if the variance is granted.
K. The requested variance would not create any material advantage which practical difficulties do not enjoy.
L. The variance requested is the minimum necessary to alleviate any practical difficulty created by the literal language of this Zoning Code. (Ord. 13-2018. Passed 4-2-18.)
(g) Conditions and Restrictions. In granting a variance, the Appeals Board may impose such conditions, safeguards and restrictions upon the premises benefited by the variance as may be necessary to comply with the standards set out in Section 1137.08(f) of this Zoning code so as to reduce or minimize any potential injurious effect of such variance upon other property in the neighborhood, and to carry out the general purpose and intent of this Zoning Code.
(h) Decisions and Records. The Appeals Board shall render a written decision on an application for a variance without unreasonable delay after the close of a hearing, but in all cases, within thirty (30) days from the close of the hearing. The Secretary of the Appeals Board shall maintain complete records of all actions of the Appeals Board with respect to applications for variances.
(i) Period of Validity. No variance granted by the Appeals Board shall be valid for a period longer than six (6) months from the date on which the Appeals Board grants the variance, unless within such six (6) month period, either a zoning certificate is obtained and construction, moving, or remodeling of a structure is started; or an occupancy permit is obtained and a use commenced. The Appeals Board may grant a maximum of two (2) extensions not exceeding six (6) months each, upon written application, without notice of hearing.
(j) Extensions. If the authorized work is suspended or abandoned for a period of six (6) months after the time of commencing the work, the zoning permit shall become invalid. Two (2) extensions may be granted for six (6) months each, if requested by the owner at least ten (10) days in advance of the expiration of the existing permit and upon the payment of a fee for each extension as provided herein.