(A) The Zoning Board of Appeals shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms of this chapter, but does have power to act on those matters where this chapter provides for an administrative review, interpretation and to authorize a variance as defined in this section and laws of the state.
(B) Said powers include:
(1) Administrative review. To hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the Building Official or any other administrative official in carrying out or enforcing any provisions of this chapter; and
(2) Exceptions and special approvals. To hear and decide in accordance with the provisions of this chapter, requests, for interpretations of the zoning text and zoning map, and for decisions on special approval situations on which this chapter specifically authorities the Board to pass. Any exception or special approval permit shall be subject to such conditions as the Board may require to preserve and promote the character of the zone district in question and otherwise promote the purpose of this chapter.
(C) Variance: to authorize the following upon an appeal:
(1) A non-use variance from the strict applications of the provisions of this chapter where by reason of exceptional narrowness, shallowness, shape or area of a specific piece of property at the time of enactment of this chapter or by reason of exceptional topographic conditions or other extraordinary or exceptional conditions of such property, the strict application of the regulations enacted would result in peculiar or exceptional practical difficulties in the use of the property in question upon the owner of such property; provided, such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this chapter. In granting a variance, the Board may attach thereto such conditions regarding the location, character and other features of the proposed use as it may deem reasonable in furtherance of the purpose of this chapter. A non-use variance shall require a majority vote of the membership of the Board to reverse a determination of an administrative official. The applicant must show practical difficulty by demonstrating that:
(a) Strict compliance with area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity unnecessarily burdensome;
(b) A variance would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation would give substantial relief and be more consistent with justice to others;
(c) The plight of the owner is due to unique circumstances of the property; and
(d) The problem is not self-created.
(2) A use variance for a use not permitted in the zoning district in which the property is located subject to the following procedure.
(a) Procedure. A request for rezoning of the property in question shall be made in accord with zoning ordinance amendment procedure before a request for a use variance is made.
(b) Information required. In addition to the information required for other variance requests, an application for a use variance under this section shall include a plan drawn to scale detailing the specific use and improvements proposed by the applicant, and a summary of the facts which must support all of the following conclusions to demonstrate the showing of unnecessary hardship:
1. Applicant’s property cannot be used for the purposes permitted in the zoning districts;
2. Applicant’s plight is due to unique circumstances peculiar to his or her property and not to general neighborhood conditions;
3. Applicant’s suggested use would not alter the essential character of the area;
4. Applicant’s problem has not been self-created; and
5. Unavailability of administrative relief which may afford reasonable use of applicant’s property.
(c) Pre-hearing conference. Prior to the scheduling of a hearing, the applicant shall contact the Building Official for the purpose of scheduling a pre-hearing conference between the applicant, the city’s Building Official and the City Attorney and others as may be deemed appropriate by the city. The purpose of the pre-hearing conference shall be to:
1. Review the procedure for the hearing and identify all persons who will testify (directly or through affidavit) and the evidence to be offered on behalf of the applicant;
2. Attempt to secure a statement of agreed-upon facts to be used to narrow the matters of dispute and shorten the hearing;
3. Explore a means of providing relief by way of non-use variance from the Zoning Board of Appeals, or other relief which may require action by persons or bodies other than the Zoning Board of Appeals which will afford an adequate remedy for the applicant; and
4. The pre-hearing conference shall be scheduled and conducted on an expeditious basis so as to avoid unreasonable delay to the applicant. Sufficient time shall be taken, however, to achieve the purposes of the pre-hearing conference stated above.
(d) Use variance decision by the Board of Appeals.
1. A use variance shall require a two-thirds vote of the membership of the Board to reverse a determination of an administrative official.
2. The Zoning Board of Appeals may deem it appropriate in any given case to provide an opportunity for anyone presenting testimony or evidence to submit proposed findings of fact and conclusions.
3. At the conclusion of the hearing, the Zoning Board of Appeals may make its decision at that meeting, or it may adjourn the hearing to a new date for the purpose of reviewing the testimony and evidence, and reviewing proposed findings and conclusions submitted by hearing participants, in preparation for making its decision.
4. If the Zoning Board of Appeals determines to grant variance relief, it shall be the minimum relief required to allow reasonable use of the property, while maintaining the essential character of the area. Such relief may be in the form of one or more non-use variances and/or in the form of a use variance. The motion may include conditions that are authorized by law.
5. If the Zoning Board of Appeals adopts a motion to grant variance relief, such motion may be made as a tentative grant of relief subject to review by the Planning Commission or other person or official with expertise, with a view of obtaining recommendations on any conditions that may be relevant and authorized by law, and for the further purpose of ensuring that the grant of relief would not violate applicable law. If such a tentative grant of relief is approved, the Zoning Board of Appeals shall request the completion of all reviews by other commissions or persons by a specific date.
(D) Permit the modification of automobile parking space requirements where, in the particular instance, such modification will not be inconsistent with the purpose and intent of such requirements, or where the provision of the required amount of parking spaces would create undue hardship or practical difficulty in existing business areas, in the opinion of the Board.
(E) The Board may issue temporary building or use permits during periods of construction.
(Prior Code, App. A, § 2704) (Ord. 1277, passed 4-2-2007)