(a) Purpose. The purpose of a variance is to provide limited relief from the requirements of this code in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this code. It is not intended that a variance be granted merely to remove inconveniences or financial burdens that the requirements of this code may impose of property owners in general. Variances are intended to address extraordinary, exceptional, or unique situations that were not caused by the applicant's act or omission.
(b) Variance Review Procedure. The review procedure for a variance shall be as established in this section. A pre-application meeting (See Section 1105.02(e).) is encouraged, but not mandatory, prior to submission of the application.
(1) Step 1 - Application. The applicant shall submit an application in accordance with Section 1105.02, and with the provisions of this section.
(2) Step 2 - Staff Review and Transmission to the Planning Commission.
A. Upon determination that a variance application is complete, the Zoning Administrator shall distribute the application to all appropriate City departments and professional consultants for review and comment. Any comments or expert opinions shall be returned to the Zoning Administrator for transmission to the BZA.
B. The Zoning Administrator shall distribute the application and any reports prepared as part of Subsection 1105.11(b)(2)A, prior to the BZA's meeting, as applicable, where the application is to be reviewed.
(3) Step 3 - BZA Review and Decision.
A. Within 60 days after the application is determined to be complete, BZA shall hold a public hearing on the variance application.
B. The BZA shall review the variance application during a public hearing.
D. In reviewing the application, the BZA shall at a minimum, consider the reports and opinions transmitted by the Zoning Administrator and the review criteria of this section.
E. The BZA may request that the applicant supply additional information that the Board deems necessary to review and evaluate the request for a variance.
F. In making its decision, the BZA may approve, approve with modifications or supplementary conditions, or deny the application.
G. In making its decision, the BZA shall make specific findings of fact based directly on the particular evidence presented that the reasons set forth in the application and as presented by the applicant during the public hearing, justify the approval, approval with modifications or supplementary conditions, or denial of the variance application that will make possible a reasonable use of the land, building, or structure.
H. If the BZA fails to act within 60 days from the date of the initial public hearing, or an extended period as may be agreed upon by the BZA and applicant, then the application shall be considered denied.
I. The decision of the BZA shall become effective immediately.
J. In approving a variance, the BZA may impose conditions on the approval, the proposed use, and the premises to be developed or used pursuant to such approval as it determines are required to be ensure compliance with the standards of this section and the purpose of this code. Any conditions established by the BZA shall relate directly to the requested variance.
K. Any violation of the conditions of approval shall be a violation of this code, subject to the enforcement and penalties of Chapter 1133: Enforcement and Penalties.
(c) Review Criteria.
(1) Area or Dimensional Variance. Where an applicant is seeking an area or dimensional variance, the following factors shall be considered and weighed by the BZA to determine if a practical difficulty exists that would justify approval of the variance. However, no single factor listed below may control, and not all factors may be applicable in each case. Each case shall be determined on its own facts.
A. Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district. Examples of such special conditions or circumstances are exceptional irregularity; narrowness, shallowness or steepness of the lot; or proximity to non-conforming and inharmonious uses, structures or conditions;
B. Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
C. Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures;
D. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the variance;
E. Whether the variance would adversely affect the delivery of governmental services such as water, sewer, trash pickup;
F. Whether special conditions or circumstances exist as a result of actions of the owner, not including purchase or acquisition of the property;
G. Whether the property owner's predicament feasibly can be obviated through some method other than a variance;
H. Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance;
I. Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district; and
J. Whether a literal interpretation of the provisions of this Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Code.
(2) Use Variance. In order to grant a use variance, the BZA shall determine that strict compliance with the terms of this code will result in unnecessary hardship to the applicant. The applicant must demonstrate such hardship by clear and convincing evidence that all of the following criteria are satisfied:
A. The property cannot be put to any economically viable use under any of the permitted uses in the zoning district in which the property is located;
B. The variance requested stems from a condition which is unique to the property at issue and not ordinarily found in the same zone or district;
C. The hardship condition is not created by actions of the applicant (actions of the applicant shall not include the purchase or acquisition of the property);
D. The granting of the variance will not adversely affect the rights of adjacent property owners or residents;
E. If there is an existing building on the lot, that such building, due to its design, cannot be reasonably reused for a permitted use in the district;
F. The granting of the variance will not adversely affect the public health, safety or general welfare;
G. The variance will be consistent with the general spirit and intent of this code; and
H. The variance sought is the minimum that will afford relief to the applicant.
(d) Time Limit.
(1) The applicant shall receive approval of a zoning certificate or sign permit, as applicable, within one year of the date the variance was approved and comply with the time limits of the approved zoning certificate or sign permit or the approval shall expire unless an alternative schedule was approved by the BZA in its approval.
(2) Upon expiration of a variance approval, a new application, including all applicable fees, shall be required before a new variance will be reviewed.
(e) Appeals. Any person or entity claiming to be injured or aggrieved by any final action of the BZA shall have the right to appeal the decision the court of common pleas as provided in ORC Chapters 2505 and 2506.
(Ord. 2018-009. Passed 5-7-18; Ord. 2019-17. Passed 10-7-19.)