(A) Purpose. The Board of Zoning Appeals may authorize upon appeal, a variance from strict application of the provisions of this Zoning Code in accordance with the standards set forth in this section. Use variances are prohibited.
(B) Public Hearing and Notice. A public hearing shall be held by the Board of Zoning Appeals within 30 days after the receipt of an application for an appeal or variance from the Zoning Enforcement Officer or an applicant. Notice thereof shall be given to the parties in interest not less than 20 days prior to the date of the public hearing by first class mail and by publishing notice in one or more newspapers of general circulation in the city. The notice shall set forth the time and place of the public hearing, and the nature of the proposed variance. Additional notice may also be given by such other means as the granting authority deems appropriate, such as by posting notice on or near the parcel of land involved or at places which will be conspicuous to the neighboring properties and to the public. 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 the action taken. The public hearing must be open to the public and testimony should be taken under oath and subject to cross-examination.
(C) Written Application. The requested variance must be in writing, submitted by the filing deadline established in the Board of Zoning Appeals Schedule of Meetings, and contain the following information which demonstrates that the variance request meets the requirements of § 154.06.01
:
(1) A fully completed Variance Application Form provided by the city, signed by the property owner or the owner's designated agent, and properly notarized;
(2) If necessary, a fully completed Agent Authorization Form provided by the city, signed by the property owner, and properly notarized;
(3) The owner names, addresses, and parcel numbers of all property located within 200 feet of the property in question, along with a corresponding map showing these parcels;
(4) A site plan drawn to scale indicating the dimensions of all existing and proposed structures and their distances to each property line, as well as photographs of the premises;
(5) For sign variances, a site plan and elevations drawn to scale showing the location, size, height, setback, color scheme, method of lighting, and method of support of the proposed sign;
(6) Any other information or materials necessary to support the application;
(7) Payment of an application fee as established in Chapter 37: General Fee Schedule.
(D) Board of Zoning Appeals Review. The Board of Zoning Appeals shall base its review of a variance application upon the complete application, upon any staff report, and upon any relevant and credible public testimony and evidence presented during the adjudication hearing. If the Board of Zoning Appeals finds that the information provided is insufficient to make a determination, it may suspend its review until sufficient information has been provided.
(1) Burden of Proof. The applicant shall be required to present by preponderance of reliable, probative, and substantial testimony and evidence that supports the applicant's request for a variance.
(2) Decision Standards. The Board of Zoning Appeals will consider the effect of the request on the public health, safely and welfare. 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 unreasonable and that substantial justice is done. This determination shall be made without regard to the existence of variances and nonconformities on other land, sites, or structures not presently under consideration. In determining whether practical difficulties exist sufficient to warrant a variance, the Board shall consider and weigh the following factors:
(a) Whether the property in question will yield 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 (i.e. water, sewer, garbage);
(e) Whether the property owner purchased the property with the knowledge of the zoning restriction;
(f) Whether the property owners' 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; and
(h) Any other relevant factor.
(E) Action by Board of Zoning Appeals.
(1) The Board of Zoning Appeals shall grant, grant with conditions, or deny a variance application as presented and shall clearly state the findings upon which its decision is based.
(2) The Board of Zoning Appeals shall base its decision only upon the Decision Standards in this chapter. The Board may prescribe any additional conditions and safeguards that it deems necessary to ensure that the objectives of the regulations or provisions to which the variance applies will be met. Any violation of such conditions and safeguards, when they have been made a part of the terms under which the variance has been granted, shall be deemed a punishable violation under this Zoning Code.
(F) Following disapproval by the Board of Appeals of an application or request for variance from the literal interpretation of this Zoning Code, no subsequent application requesting the same variance shall be filed by any applicant, whether the person, firm, or corporation, until the expiration of 12 months after the original or subsequent disapproval.
(G) Issuance of Permits.
(1) The Zoning Administrator shall issue permits to permit the action for which a variance was sought after the Board of Appeals grants a variance. Construction permits shall not be issued unless the plans substantially conform to those upon which a variance was granted. Any action that exceeds a granted variance shall constitute a violation of the Zoning Code.
(2) Approval of a variance shall expire if the applicant or owner fails to obtain the required zoning certificate or building permits within 180 days from the date of approval by the Board. The Board may grant a maximum of two extensions not exceeding 180 days each, upon written application. The Board shall not consider or grant any extension when a zoning map or text amendment has been enacted, subsequent to the approval of the original variance, which would affect the property subject to the variance.
HISTORY: (Newly proposed; Formerly §154.12(C)(2); Am. Ord. 3677, passed 8-25-20)