A. Intent: The zoning board of appeals, or in the case of exemptions to the village code requirements or variations to the gross floor area provisions and stormwater management regulations, the village board, may, after a public hearing, vary the regulations of this ordinance in harmony with its general purpose and intent. Variations shall be granted only in the specific instances, hereinafter set forth, where the zoning board of appeals makes findings of fact in accordance with the standards set forth in this ordinance, and further, finds that there are practical difficulties or particular hardships on the petitioner in the way of carrying out the strict letter of the regulations of this ordinance or that the variation is necessary in order for the petitioner or the village to comply with or conform to federal or state law. (Ord. 01-2167, 5-21-2001)
B. Eligible Petitioners: An application for a variation may be made by any person, firm, or corporation, or by any office, department, board, bureau, or commission with a proprietary interest in property within the village. (Ord. 92-1855, 12-14-1992)
C. Variation Procedures:
1. Applications: An application for a variation shall be filed with the department of code enforcement, who shall forward such application to the zoning board of appeals. (Ord. 92-1855, 12-14-1992; amd. Ord. 98-2064, 12-21-1998)
2. Public Hearings: Public hearings conforming to state statutes and this ordinance shall be required for all variation applications. Notice of all public hearings shall be published not more than thirty (30) days nor less than fifteen (15) days before said hearing in one or more newspapers with a general circulation within the village. If a specific parcel is the subject of the application, notice shall also be given by posting a sign on said property. The sign shall measure at least six (6) square feet and bear on its face the words "Zoning Application Pending" and a telephone number that can be called for additional information. The sign shall be issued to the applicant by the department of code enforcement for posting by the applicant. The sign shall be posted facing the street, not more than thirty (30) days nor less than fifteen (15) days before said hearing and shall be removed from the property and returned to the department of code enforcement by the applicant following the conclusion of the hearing. (Ord. 99-2081, 4-26-1999)
3. Decisions: The zoning board of appeals, or in the case of variations to the gross floor area provisions the village board, shall determine findings of fact based on the standards established in subsection C4 of this section.
4. Criteria For Variations: The regulations of this ordinance shall not be varied unless findings based on the evidence presented are made in each specific case that affirm each of the following criteria:
a. Because of the particular physical surroundings, shape, or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be applied;
b. The conditions upon which an application for a variation is based are unique to the property for which the variation is sought, and are not applicable, generally, to other property within the same zoning classification;
c. The purpose of the variation is not based primarily upon a desire to increase financial gain;
d. The alleged difficulty or hardship is caused by this ordinance and has not been created by any person presently having an interest in the property;
e. The granting of the variation will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located;
f. The granting of the variation will not alter the essential character of the neighborhood; and
g. The proposed variation will not impair an adequate supply of light or air to adjacent property or substantially increase the congestion of the public streets, or increase the danger of fire, or impair natural drainage or create drainage problems on adjacent properties, or endanger the public safety, or substantially diminish or impair property values within the neighborhood. (Ord. 92-1855, 12-14-1992)
5. Limitations On Variations: Limitations on the degree or amount of exception or variation are established below. These limitations shall constitute the maximum variation allowed and shall not be interpreted as the recommended variation.
a. Off Street Parking And Loading Variations: Variations from the parking and loading requirements established in chapter 4, part II of this ordinance shall be limited as follows:
(1) The same off street parking facility may be used to satisfy the parking requirements of this ordinance for two (2) or more uses, and provided that substantial use of such facility by each user does not take place at approximately the same hours of the same days of the week, provided that the reduction in parking spaces is not less than sixty percent (60%) of the total number required if calculated separately. An independent parking study shall accompany any such requests for variation.
(2) The applicable off street parking or loading requirements may be reduced by one parking space or loading space, or twenty percent (20%) of the required facilities, whichever is greater, provided that requirements for conditional uses shall be subject to subsection 10-3-14G7 of this chapter.
b. Building Height: Variations in the height of buildings and structures shall not be more than ten percent (10%) above the maximum height allowed.
c. Lot Area: Variations in the amount of lot area required shall not result in such lot area being reduced by more than five percent (5%) of the minimum area required.
d. Building Coverage: A variation to the maximum building coverage restrictions can only be granted if it does not exceed ten percent (10%) of the building coverage restrictions permitted in each zoning district, except that a variation not to exceed fifteen percent (15%) of the maximum building coverage restrictions may be granted to a lot in the R2 - single-family residence district for purposes of constructing an addition to an existing principal building or structure, provided the following criteria are met:
(1) The principal building or structure was constructed prior to year 1950.
(2) There is a need for preservation of a certain architectural or historic element or feature of the principal building or structure that necessitates the increased variation.
(3) The grant of a variation to the maximum building coverage restrictions under this subsection cannot cause the maximum lot coverage requirement for all structures (see subsections 10-6-3G, "Maximum Building Coverage", 10-4-4A2, "Area Limitation", and I3c, "Lot Coverage", of this ordinance) to be exceeded.
e. Accessory Use Structure Area Limitations In Required Yards: A variation to the maximum area limitations in required yard coverage can only be granted if it does not exceed ten percent (10%) of the area limitations in required yard coverage permitted. (Ord. 15-2794, 3-23-2015)
6. Revocation: Where a variation has been granted pursuant to the provisions of this section, such approval shall become null and void unless work thereon is substantially underway within twelve (12) months of the date of issuance. An extension past twelve (12) months may be authorized for up to six (6) months by the zoning board of appeals. A public hearing for an extension shall be held only if the person granted the variation or a successor ("the petitioner") requests such an extension and hearing in writing to the department of code enforcement prior to the end of the initial twelve (12) month period. All costs for the public hearing to consider the extension shall be paid by the petitioner. (Ord. 97-2029, 11-24-1997; amd. Ord. 98-2064, 12-21-1998)
7. Exemption From Development Control Ordinance Requirements: The board of trustees may approve an exemption from any of the requirements of the development control ordinance, in order to comply with or conform to federal or state law, or to avoid or resolve any alleged violation of the freedom of religion based rights afforded to any person under federal or state law caused by the enforcement of any village regulation. Any person desiring such an exemption shall file a written petition with the chief building official, who shall forward the petition to the board of trustees for purposes of conducting a public hearing on the petition and issuing a final determination. The petition shall include separate statements that: a) advise which particular regulation of the village the requested exemption relates to; b) explain how the regulation is not in conformance with federal or state law or how it allegedly violates the person's freedom of religion based rights afforded under federal or state law; c) describe how granting the exemption would be in the public interest and not be contrary to health, safety and welfare considerations; and d) describe the intended use of land or activity for which the exemption is being sought. The petitioner shall submit any additional information requested by the board of trustees and shall appear before the board of trustees at the public hearing to explain the request and to answer any questions relative to the petition. The board of trustees, however, may consider approving an exemption in accordance with the criteria set forth below, based on evidence available to it, without the filing of a petition under this section or without the petitioner being present at the public hearing.
In considering an exemption from the requirements of the development control ordinance, the board of trustees may approve the exemption provided it makes findings, based on the presented evidence, regarding at least one of the following criteria:
a. The exemption is in the public interest and is not contrary to health, safety and welfare considerations.
b. The exemption is necessary for the petitioner or the village to comply with or conform to federal or state law and the village regulation does not constitute or further a compelling governmental interest in need of protection and is not the least restrictive alternative for satisfying or achieving the governmental interest.
c. The exemption is necessary to avoid or resolve any alleged violation of the freedom of religion based rights afforded to any person under federal or state law caused by the enforcement of any regulation of the development control ordinance and the village regulation does not constitute or further a compelling governmental interest in need of protection and is not the least restrictive alternative for satisfying or achieving the governmental interest.
(1) Village Regulation: The board of trustees shall either grant or deny the exemption within thirty (30) days of the conclusion of the public hearing at which it considered the exemption. The board of trustees may request additional information from the petitioner, may continue the hearing from time to time in order to fully consider the petition and all pertinent information, and may grant the exemption: a) in full, or b) in part by waiving compliance with certain aspects of the village regulation. The board of trustees may grant the exemption in full or in part, subject to conditions that are related to the public health, safety and welfare. If the board of trustees grants the exemption in full or in part, it shall pass an ordinance that approves of the exemption and, if appropriate, the ordinance may contain conditions relating to the exemption. If the board of trustees denies the exemption, it shall issue a written decision that identifies the reasons for the denial and shall provide a copy of the decision to the petitioner. The petitioner may file a written request with the board of trustees for a temporary use permit to allow the use or activity during the pendency of the exemption petition process pursuant to chapter 4 of this ordinance.
(2) Village Policy Or Practice: In regard to an exemption from any village policy or practice, the same procedures and criteria under subsection C7c(1) of this section shall apply, except that there shall be no public hearing before the board of trustees. The chief building official shall forward the petition to the board of trustees who shall consider the exemption petition at an open public meeting that shall be attended by the petitioner. The public meeting shall be scheduled within thirty (30) days of receipt of the petition and the board may request additional information from the petitioner. The board shall grant or deny the exemption within thirty (30) days of the conclusion of the last public meeting at which it considers the information relative to the exemption. The board of trustees may grant the exemption in full or in part, subject to conditions that are related to the public health, safety and welfare. If the board of trustees grants the exemption in full or in part, it shall pass an ordinance that approves of the exemption and, if appropriate, the ordinance may contain conditions relating to the exemption. If the board of trustees denies the exemption, it shall issue a written decision that identifies the reasons for the denial and shall provide a copy of the decision to the petitioner. (Ord. 01-2167, 5-21-2001)