Publisher's Note: This Section has been AMENDED by new legislation (Ord. 23-27
). The text of the amendment will be incorporated below when the ordinance is codified.
A. Hardships: Certain circumstances exist or arise wherein an unnecessary hardship is created through strict adherence to the provisions of these regulations. There is hereinafter provided provisions for the granting of a variance from the provisions of these regulations, so that the public welfare is secured, and substantial justice can be done to those so affected. Any zoning deviations utilized as incentives received with an approved Housing Mitigation Plan pursuant to section 11-1A-5 of this title are not subject to the provisions of this subsection and are not required to obtain a variance.
B. Application For Variance:
1. Application for a variance may be filed by any property owner or their designated agent for the affected property.
2. The application shall be made on a form provided by the Office of the Zoning Administrator. Multiple requests for variance for the same project may be filed on a single application and charged a single fee.
3. The completed application and fee as set by the City Council shall be submitted to the Zoning Administrator.
4. No part of any required fee shall be refundable after an application is filed and the fee paid, except under petition by the applicant and approval by the Zoning Administrator. No fee paid for an action which is declared closed or ruled invalid shall be refunded.
C. Procedure For Consideration:
1. The Zoning Administrator shall transmit the completed application to the Board of Adjustment at least five (5) calendar days prior to the date of their next regularly scheduled meeting, together with all supportive materials thereto attached, and shall set a hearing date, publish notice as provided for in these regulations and notify all parties of interest. Notice of the hearing shall be placed in a newspaper of general circulation in the community at least fifteen (15) calendar days prior to the date of the hearing.
2. Written notice shall be sent by regular mail to all property owners within one hundred fifty feet (150') of the subject property at least fifteen (15) calendar days prior to the hearing. Where the subject property abuts a public right-of-way, the one hundred fifty foot (150') measurement shall be in addition to this right-of-way along the abutting side.
3. Findings are required to be made by the Board for approval of a variance. No variance shall be granted unless the Board finds all the following conditions are met or found to be not pertinent to the particular case:
a. Strict compliance with the terms of these regulations will:
(1) Limit the reasonable use of the property; and
(2) Deprive the applicant of rights enjoyed by other properties similarly situated in the district.
b. The hardship is the result of lot size, shape, topography or other circumstances over which the applicant has no control.
c. The hardship is peculiar to the applicant's property.
d. The hardship was not created by the applicant.
e. The hardship is not economic (when a reasonable or viable alternative exists).
f. Granting the variance will not adversely affect the neighboring properties or the public.
g. The variance requested is the minimum variance which will alleviate the hardship.
h. Granting the variance will not confer a special privilege that is denied other similar properties in the district.
4. Every decision of the Board of Adjustment shall be made by motion and shall be based upon findings of fact, and every finding of fact shall be supported in the record of its proceedings. The enumerated conditions required to grant a variance under these regulations shall be construed as limitation on the power of the Board to act. A mere finding or recitation of the enumerate conditions unaccompanied by findings of specific fact shall not be deemed in compliance with these regulations.
5. In approving a variance, the Board may impose such conditions as are in its judgment necessary to promote the general provisions of these regulations.
6. It shall take the affirmative vote of four (4) members of the Board to grant a variance.
7. A hearing may be continued at the request of the applicant or upon motion of the Board; provided however, that the granting of a continuance is a matter of grace, resting solely in the discretion of the Board, and a refusal to continue is not a denial of a right, conditional or otherwise.
8. Decision on continuance of a hearing can be reached by a simple majority; but must be made prior to voting on the application itself.
9. A variance shall be valid indefinitely, provided it is exercised within one year of the date of issuance, or as otherwise provided for by the Board of Adjustment.
10. The Board of Adjustment shall act upon any application for a variance within sixty (60) days of the date of filing with the Zoning Administrator. Failure of the Board to act within this time frame shall constitute approval of the application.
11. A request may be reheard only when there has been a manifest error affecting the Board's decision, or it appears that a substantial change in facts, evidence or conditions has occurred. The determination shall be made by the Zoning Administrator within sixty (60) days of final action by the Board.
12. Any person aggrieved by a decision of the Board of Adjustment may file an appeal with a court of record within thirty (30) days of the filing of the decision by the Board. (Ord. A-407, 3-15-1982; amd. Ord. 19-11, 6-3-2019; Ord. 21-11, 8-16-2021)