(a) Composition and Officers. The Board shall consist of such members, of such terms of office as is provided by Section 3.11 of the Charter. Vacancies shall be filed for the unexpired term only. Members may be removed for cause by Council upon written charges and after public hearing within thirty days after the filing of such charges.
(b) Meetings and Records. Meetings of the Board of Zoning Appeals shall be held at the call of the chairman and at such other times as the Board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its official actions, all of which shall be filed in the office of the Clerk and shall be a public record. At the first meeting of each year, the Board shall elect a chairman, a vice-chairman and a secretary from among its members who shall serve for one year.
(c) Filing Procedure. Written application for a variance, Conditional Use Permit, or special exception shall be filed with the Zoning Enforcement Officer, who will transmit the same, together with all the scale plot drawings, plans, specifications, and other papers pertaining to the application to the Board. Written application for an administrative appeal shall be made directly to the Board, as well as to the Zoning Enforcement Officer.
(Ord. 314. Passed 5-30-73.)
(d) General Powers.
(1) In exercising its power, the Board shall act in strict accordance with State law and provisions of the Zoning Ordinance. The Board shall not, however, permit any use which is not a permitted use in a particular zoning district.
(2) All applications made to the Board for variances, Conditional Use Permits and special exceptions shall be in writing and shall be filed with the Zoning Enforcement Officer at least fourteen days prior to the meeting at which they are to be heard. Each application shall refer to the specific provisions of the Zoning Ordinance involved and shall set forth exactly a clear description of land involved; the interpretation that is claimed; the details of the variance proposed to be granted; the use for which a Conditional Use Permit is sought; the reasons justifying the special exception, as the case may be.
(3) The Board shall decide all applications and appeals within sixty days after completion of hearing. Such decision shall be binding upon the Zoning Enforcement Officer and/or Planning Commission. The terms and conditions of the decision by the Board shall be incorporated into any building permit whenever such is authorized by the Board.
(4) The presence of three members shall constitute a quorum. A concurring vote of three members of the Board shall be necessary to reverse an order, requirement, decision, or determination of the Zoning Enforcement Officer or Planning Commission to decide in favor of the applicant on any matter upon which it is required to pass by the Zoning Ordinance, or to grant a variance from the requirements of the Zoning Ordinance. The Board shall act by resolution, and a copy of each resolution duly adopted shall be filed in the office of the Clerk.
(5) Every Conditional Use, special exception or variance, allowed or granted, by the Board shall expire and be of no force or effect after the expiration of six months from the date thereof, unless the beneficiary of such variance, Conditional Use Permit or special exception shall have actually, within the period, put the subject property to the purpose for which such variance, Conditional Use Permit or special variance shall have been granted or allowed.
(Ord. 857. Passed 6-20-89.)
(e) Specific Powers Relative to Administrative Errors. The Board shall hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by the Zoning Enforcement Officer in the enforcement of the Zoning Ordinance. Any person claiming to be aggrieved by any order, requirement or decision made by the Zoning Enforcement Officer may appeal to the Board. Such appeal shall be taken within twenty days of the date of decision, by filing with the Zoning Enforcement Officer from whom the appeal is taken and with the Board a Notice of Appeal specifying the grounds thereof. The Zoning Enforcement Officer shall transmit to the Board all of the papers constituting the record upon which the action appealed from is taken. Normally, such review by the Board shall be limited to alleged errors in interpretation of the Zoning Ordinance.
(f) Specific Powers Relative to Conditional Uses. Upon application, the Board shall be empowered to issue a Conditional Use Permit to allow for the following situations:
(2) Conditional Use Permit. The purpose of a Conditional Use Permit is to allow a proper integration into the community of uses which may only be suitable in specific locations within certain zoning district(s) or only if such uses are designed or laid out in a particular manner on the site. A Conditional Use Permit shall be required for all uses listed as conditional uses in the district regulations, and in Section 1153.02(a).
(3) Considerations in issuing permits. In considering an application for a conditional use, the Board must make an affirmative finding that:
A. The proposed Conditional Use is to be located in a district wherein such use may be permitted. The conditions for approval of a Conditional Use will all be met as indicated in Section 1153.02(b).
B. The proposed Conditional Use shall, in addition, meet all the requirements specified for the zoning district in which it is located.
In addition, the Board shall give due regard to the nature and condition of all adjacent uses and structures and in issuing a Conditional Use Permit, the Board may impose such requirements and conditions with respect to location, design, siting, maintenance and operation of the use, in addition to those expressly provided in Section 1153.02(a) of the particular use, as may be necessary for the protection of adjacent properties and in the public interest. Before issuing a Conditional Use Permit, the Board shall determine that the establishment, maintenance and operation of a proposed conditional use is generally consistent with the provisions of the Comprehensive Plan and will not be detrimental to the public health, public safety, or general welfare of persons or property in the Municipality.
(4) Application. Application for a Conditional Use Permit shall be made by the property owner or agent thereof to the Board, on a form prescribed by the Municipality. The application fee for a Conditional Use Permit shall, except as hereinafter provided, be in such amount as is prescribed by resolution of Council. The application under this chapter shall be accompanied by maps and drawings necessary to demonstrate that conditions set forth herein shall be fulfilled.
(5) Public hearing.
A. Defined. As used in this section, "public hearing"means a regularly scheduled hearing before the Board of Zoning Appeals at which the applicant, Municipal representative, other interested persons and the public in general are invited, by reason of publication of notice of public hearing pursuant to the provisions of subsection (f)(7) hereof, to make presentations in the matter under consideration.
B. Not required generally. Except as otherwise provided in this section, or by any other provision of law, no public hearing need be held by the Board in considering an application for a Conditional Use Permit.
C. May be ordered. A public hearing may be ordered and held by the Board when it deems such public hearing to be necessary in the public interest.
(6) Related uses, conforming uses and enlargement.
A. If the nature of the Conditional Use is closely related to one of those listed in Section 1153.02(a), the applicant may apply for a Conditional Use Permit for the conditional use which is most closely related to the primary use; provided that the requirements of all related uses will be met.
B. An existing lawful use which is listed herein as a conditional use and which is located in a district in which such conditional use may be permitted, shall be considered a conforming use.
C. Any expansion of such conditional use involving the enlargement of the buildings, structures, and land area devoted to such use shall be subject to the procedure described in this section.
(7) Notice of public hearing. If the Board orders a public hearing on a Conditional Use Permit application, notice thereof shall be given not less than ten days prior to the date of public hearing by posting notice on or near the parcel of land involved at places which will be conspicuous to the neighboring properties and to the public, and additionally by at least one of the following two methods:
A. By mailing notice to all owners as shown on the last adopted tax roll, of property adjacent to and abutting the parcel involved or across the public right of way therefrom, such mailing to be at least ten days prior to the public hearing; or
B. By publishing notice in a newspaper of general circulation printed and published in the City, not less than ten days prior to the public hearing. Notice may also be given by such other means as the Board of Appeals deems appropriate. Failure of any person, other than the applicant, to receive notice of any hearing or public hearing shall in no way affect the validity of action taken. (Ord. 314. Passed 5-30-73.)
(8) Expiration. Following disapproval by the Board of an application or request for a Conditional Use Permit, no subsequent application requesting the same variance shall be filed by any applicant, whether the same person, firm or corporation, until the expiration of twelve months after the original or subsequent disapproval. The Board shall cause to be made a record of all its proceedings, setting forth its reasons for its decisions. Such record, immediately following the Board's decision, shall be filed in the offices of the Clerk and shall be open to public inspection. In any case where a Conditional Use permit has not been used within one year after the date of granting thereof, or within such other period of time which may be prescribed in the permit, or within any extension granted pursuant to this section, then without further action, the permit shall expire.
(Ord. 867. Passed 10-3-89.)
(g) Specific Powers Relative to Special Exceptions. Upon application, the Board shall be empowered to issue a special exception to allow the following situations:
(1) To permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, Act of God, or public enemy, to the extent of more than sixty percent (60%) of its reasonable value where the Board finds some compelling public necessity requiring a continuation of the nonconforming use and the primary purpose of continuation of the nonconforming use is not to continue a monopoly.
(2) To permit the one-time enlargement of existing nonconforming buildings upon the same lot occupied by such building or upon an adjoining lot, provided that such lot was under the same ownership as the lot on which such nonconforming building existed at the time such buildings became nonconforming, and provided that such enlargement is necessary and incidental to the existing use of such building, and further provided that the enlargement conforms to the height, yard and area requirements of the zoning district in which it is located and where use enlargements are not detrimental to present and potential surrounding uses and will be in harmony with the general purpose and intent of the Zoning Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the health, safety and general welfare of the residents of the City.
(3) To vary parking and loading-unloading regulations whenever the character or use of the building is such as to make necessary the full provision of parking and loading-unloading facilities or when such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or a convenience.
(4) To permit the erection and use of a building or the use of premises for public utility purposes.
(5) To permit the substitution of one or more nonconforming uses for another where the Board finds evidence that the proposed uses will be less detrimental to the neighborhood than the existing use and where there is substantial evidence that the structure to house the proposed substitution is ill-suited by architectural and physical design to either a permitted or conditional use in a given zoning district.
(Ord. 82-02. Passed 3-2-82.)
(h) Specific Powers Relative to Variances. The Board shall have the power to authorize upon appeal in specific cases, filed as hereinbefore provided, such variances from the provisions or requirements of the Zoning Ordinance as will not be contrary to the public interests but only in the case of peculiar conditions, involving irregular, abnormally narrow, shallow or steep lots, or other unusual conditions, whereby strict and literal application of such provisions or requirements would result in practical difficulty and unnecessary hardship that would deprive the owner of the reasonable use of the land or buildings involved. No variance from the strict application of any provision of the Zoning Ordinance shall be granted by the Board unless it finds, beyond reasonable doubt, that one or more of the following facts and conditions exist:
(1) That special conditions and circumstances exist which are peculiar to the land , structure, or building involved, and which are not applicable to other lands, buildings, or structures within the same zoning district.
(2) That literal interpretation of the provisions of the Zoning Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the Zoning Ordinance.
(3) That the special conditions and circumstances do not result from the actions of the applicant.
(4) That granting the variance requested will provide the minimum necessary relief to alleviate the hardship and will not confer on the applicant any special privilege which is denied by the Zoning Ordinance to other lands, structures or buildings in the same zoning district.
(5) That granting of the variance will be in harmony with the general purpose and intent of the Zoning Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(6) That the proposed variance will not constitute a change of zoning district, including a variation in use, on the Official Zoning District Map. In no case shall the Board of Zoning Appeals approve a variance for a use which is not a permitted use in the zoning district in which the property, building or structure is located.
Following disapproval by the Board of an application or request for variance from the literal interpretation of the Zoning Ordinance, no subsequent application requesting the same variance shall be filed by any applicant, whether the same person, firm or corporation, until the expiration of twelve months after the original or subsequent disapproval. The Board shall cause to be made a record of all its proceedings, setting forth its reasons for its decisions. Such record, immediately following the Board's decision shall be filed in the offices of the Clerk and shall be open to public inspection .
(i) Appeals Procedure. Appeals from the Board of Zoning Appeals in their decisions on administrative error; variances; conditional uses; special exceptions and related matters shall be to the Court of Common Pleas of Montgomery County, Ohio, as provided by the statutes of the State.
(Ord. 314. Passed 5-30-73.)