A.

The Board of Zoning Appeals is established by and in accordance with Section 102 of the City Charter.

B.

The salary of each member of the Board of Zoning Appeals shall be one hundred dollars per meeting attended.

(Ord. 590-2004; prior code § 153.010; Ord. 322-1976)

A.

The Board of Zoning Appeals shall annually elect a chairman and vice-chairman from its members. The Mayor shall designate an employee of the City to serve as secretary of the Board without extra compensation. The planning staff shall furnish the necessary technical advice and services required by the Board. The Board shall adopt such rules and regulations as it may deem necessary to carry into effect the provisions of this Zoning Code.

B.

All meetings of the Board shall be public and shall be held at such times as may be necessary. The attendance of three members shall be necessary for a quorum. The Board shall keep minutes of its proceedings, showing the vote of each member on every question. If a member is absent, or fails to vote, the minutes shall indicate such fact. All records of the Board shall be filed in the office of the Board and be available for public inspection.

(Prior code § 153.011; Ord. 322-1976)

The Board of Zoning Appeals may, on appeal in a specific case, after public notice and hearing, vary the application of certain of the regulations established in this Zoning Code in harmony with their general purpose and intent. As set forth in Section 153.405, the Board may not grant a variance if the requested variance is substantially similar to a requested conditional use for the property that City Council denied within the previous five years. These variances shall be authorized only when the Board finds adequate evidence that they will meet the criteria set forth in Sections 153.474 and 153.476. The Board may enact sufficient and reasonable conditions and safeguards as it may deem necessary to assure the proper development of the variances consistent with its powers. The Board's jurisdiction shall be limited to the following instances, wherein the Board may authorize the issuance of a permit for:

A.

The location or erection, in any part of a Class U1 District, of a building which is arranged, in-tended or designed for a use enumerated in Section 153.240(A)(3);

B.

The extension of a building or use into a more restricted district, but not more than twenty-five feet beyond the boundary line of the district in which such use is authorized, where a use district boundary divides a lot in single ownership;

C.

The expansion of a structure or construction of a new structure on premises devoted to a nonconforming use, where the cost of such expansion during any ten-year period does not exceed sixty percent of the value at which the existing structure stands on the tax duplicate, or the value of the structure as determined by an appraisal, such appraisal to be obtained by the method described in Section 34.28, nor in any one-year period to an extent exceeding thirty percent of such value, and together with such conditions as the Board may deem appropriate to minimize the nonconforming character of the use;

D.

The extension of a nonconforming development to an extent in excess of the cost limitations of Section 153.397(B), together with such conditions as the Board may deem appropriate to minimize the nonconforming character of the development;

E.

The temporary erection or temporary placement of structures or the use of structures and premises in all districts, that do not conform to the regulations of such districts, for a period of not more than two years, where such structures are temporary only and uses are clearly incidental to and necessary for appropriate development. Such structures shall not be used nor be intended to be used for habitation and shall be approved by the Superintendent of Building Inspection and the Fire Chief before placement on the site.

F.

The location of a church in a Class U1, U2, UD, UHD, or ULB District, provided such use furnishes off-street parking based on the following criteria:

1.

The minimum requirements shall be one parking space for each five seats in the largest meeting room of the building, such largest meeting room including all space created by opening temporary partitions to consolidate space.

2.

Such parking space shall be provided either on the lot of such use, or under the provisions of subsection (H) of this section, or within a use district where off-street parking is a permitted primary use.

3.

The Board, when reviewing the plans for such parking space, shall be guided by the standards provided in the article on Development and Area District Requirements at Section 153.300 et seq. for the appropriate use district in which the parking is located.

4.

If an existing church is expanded, parking space required hereunder shall be based only on any increased seating capacity.

5.

A church, if moved to a new location or built on the site of a formerly existing similar use, or creating a new largest meeting room, shall comply with this subsection.

G.

The location of a rest home, nursing home, or convalescent home (not including rehabilitation homes or half-way homes) in a Class U1, U2, UD, UHD, ULB, or U3 District, provided that such use will not contain over ten patients or residents and provided that such use furnishes off-street parking based on the following criteria:

1.

The minimum requirement shall be two parking spaces for each five residents or patients in the facility, plus one parking space for every two full-time employees.

2.

Such parking space shall be provided either on the lot of such use, or under the provisions of subsection (H) of this section, or within a use district where off-street parking is a permitted primary use. The Board may also authorize parking on adjacent lots shared with other uses.

3.

The Board, when reviewing plans for such parking space, shall be guided by the standards provided in the article on Development and Area District Requirements at Sections 153.300 et seq. for the appropriate use district in which parking is located.

4.

If an existing nursing home, rest home, or similar institution is expanded, parking space required hereunder shall be based only on any increased capacity.

H.

The location of off-street parking facilities for motor vehicles in a Class U1, U2, UD, UHD or ULB District, where such parking is accessory to facilities of a church, hospital, or similar institutional use, nursing home, rest home, nonprofit lodge, or eleemosynary organization, subject to the following criteria:

1.

The lot used for off-street parking shall be within four hundred feet of the premises of operation or activity of the organization or institution requesting such parking.

2.

No charge shall be made for the use of such parking facilities except as a means to control their use and provide for their maintenance.

3.

The organization or institution requesting such parking facilities shall not be engaged in the dispensing of alcoholic beverages to members or guests.

4.

The Board, when reviewing plans for such parking area, shall be guided by the standards provided in Sections 153.300 et seq. for the appropriate use district in which the parking is located.

I.

Any public utility structure, building, or use in any district where not otherwise permitted where necessary for the public convenience and welfare;

J.

1.

The erection of a building or structure to a height in excess of that prescribed for the height district in which such building or structure is located, but not in excess of the height prescribed in the next less restrictive height district, where such variance is necessary for the appropriate development of the property;

2.

An accessory structure, beyond the height limitation of fifteen feet, but in no case shall the Board permit construction to exceed five feet in height beyond the fifteen-foot height limitation, except that no habitable space shall be permitted.

K.

The construction of a structure or building beyond the building line, but in no case under this subsection shall the Board permit construction to extend closer to the street line more than seventy-five percent of the distance between the building line and the street line;

L.

The use of property in a U4, U5, or U6 Use District for residential purposes, provided there is at least fifty percent residential development on the side of the street in the block in which the proposed use is to be located;

M.

The use of property in a U5 or U6 Use District for retail business purposes, provided there is at least fifty percent retail business development on the side of the street in the block in which the proposed use is to be located;

N.

The construction of a building or portion of a building between the side yard line and the lot line, but not to exceed the following limitations:

1.

Not to exceed six inches variance on the narrow side yard for the foundation wall only;

2.

Not to exceed twenty-four inches on the wide side yard of a lot if eight feet remains for a driveway after the variation is granted;

3.

Such side yard variances permitted in subsections (N)(1) or (2) of this section shall not be allowed on a lot on which any variation allowing a reduction in the rear or front yards is permitted;

4.

Chimneys not to exceed thirty inches into the required side yards.

O.

For a single-family residence only:

1.

The construction of or addition to a dwelling between the rear yard line and the lot line, shall not consume more than forty percent of the required rear yard area nor be closer than ten feet to any dwelling on an abutting property;

2.

No dwelling may be located closer than two feet to any side lot lines and no closer than ten feet to any dwelling on an abutting property; provided that the front, rear, and sides of said encroachment remain totally open, except that it may be roofed.

P.

Where the Board is satisfied that the location, nature or uniqueness of the use makes a variance appropriate, fifty percent of the required parking area may remain unimproved and retained in landscaped area;

Q.

The location of a helistop in any district where such use will not be detrimental to the safety or welfare of the surrounding neighborhood;

R.

The location of a two-family dwelling, rooming house, or over five roomers, fraternity, or sorority house, or an apartment house on a lot smaller than that prescribed in Section 153.305(B)(2), provided that not more than a ten percent reduction in either the area, building line width, or rear line width may be granted for any one lot, but not more than one such exception;

S.

The location of a residential day care center for seven to nine children in a Class U1 or U2 District, subject to the following criteria:

1.

Extra parking spaces shall be required only if the operator hires employees.

2.

Drop-off and pick-up areas shall be approved by the Traffic Engineer prior to Board of Zoning Appeals approval.

3.

Annual inspection and approval by the Building, Health, and Fire Departments.

4.

That only one day care center be permitted per City block or within one thousand feet of another day care center.

T.

The Board of Zoning Appeals may vary the underground wiring requirements where it finds undue hardship due to exceptional topographic or other physical conditions. It may vary the regulations so as to relieve such hardship, provided such relief may be granted without detriment to the public interest and without impairing the intent and purpose of this regulation or the desirable development of the neighborhood and community. In order to grant a variance the board shall determine:

1.

The lands are not conditionally zoned; if they are, no variance would be granted;

2.

That special conditions and circumstances exist which are peculiar to the land, structure, or building involved;

3.

That literal interpretation of the provisions of Sections 153.305(D)(4)(c) and 153.310(C) would deprive the appellant of rights commonly enjoyed by other properties in the same district:

4.

That the special conditions and circumstances did not result from the actions of the appellant;

5.

That granting the variance requested will not confer on the appellant any special privilege that is denied other developments in the same district.

U.

The location of accessory off-street parking for apartment houses on adjacent property in a more restrictive residential use district in areas where The Land Use and Development Guide Plan recommends mixed-residential use subject to the development conditions of Section 153.305.

V.

The location of accessory off-street parking for nonresidential use on more restrictive zoned land in areas of the City where such a policy is recommended by The Land Use and Development Guide Plan subject to the development conditions of Section 153.310.

W.

The location of a mausoleum in an existing cemetery. Penalty, see Section 153.199.

(Prior code § 153.012; Ord. 479-1994; Ord. 859-1992; Ord. 739-1987; Ord. 219-1987; Ord. 104-1986; Ord. 508-1982; Ord. 407-1982; Ord. 955-1978; Ord. 322-1976)

(Ord. 93-2021)

A.

Notwithstanding the provisions of Section 153.404, the Board of Zoning Appeals may not vary the application of regulations of the zoning code to a property if:

1.

The property for which the variance is requested was the subject of a petition for a conditional use;

2.

The requested conditional use was substantially similar to the requested variance;

3.

City Council denied the petition for a conditional use; and

4.

The written decision of City Council denying the conditional use petition was issued within five years prior to the filing of the appeal or petition giving rise to the request for a variance.

B.

A petition for a conditional use that was withdrawn by the petitioner following a public hearing before City Council shall be treated as though City Council denied the petition, except that the five-year period described in Section 153.405(A)(4) runs from the date that City Council removes the petition from its agenda.

C.

For purposes of 153.405(A)(2), City Council's denial of a petition for a conditional use for the same property within five years shall create a presumption that the requested variance is substantially similar to the requested conditional use. The party requesting the variance may rebut this presumption by showing by a preponderance of the evidence that the conditional use and variance are not substantially similar.

D.

In evaluating whether a requested variance and a requested conditional use are substantially similar, the Board may consider:

1.

The type and nature of the requested variance;

2.

The location within the property of the requested variance;

3.

The percentage of the property that would be occupied by the requested variance; and

4.

Any other factor that the Board may determine to be relevant.

E.

For purposes of this section, if the property for which the variance is sought shares the same street address or Summit County parcel number with a property for which a conditional use was sought or contains all or some of a property for which a conditional use was sought, it shall create a presumption that it is same property. A requester may rebut this presumption by showing by a preponderance of the evidence that the property is not the same property for which a conditional use was sought.

F.

In evaluating whether a property was the subject of a petition for a conditional use as contemplated in division (A)(1) of this section, the Board may consider:

1.

The property's street address;

2.

Summit County parcel number;

3.

Legal description;

4.

A survey performed by a licensed surveyor;

5.

The size of the property for which the variance is requested compared to the size of the property for which the conditional use was requested;

6.

The location of the requested variance compared to the location of the requested conditional use; and

7.

Any other factor that the Board may determine to be relevant.

(Ord. 93-2021)

In any case in which a request for a variance is granted by the Board of Zoning Appeals wherein the acquisition and use of additional adjacent land is a prerequisite to the granting of such a variance, then such additional property shall be inseparably joined to the principal parcel by a recorded deed or by a nonrevocable lease for a term of fifty years or longer, in a form prescribed by the Board. If later conditions justify, such joined land may be separated under Planning Commission authority.

(Prior code § 153.013; Ord. 322-1976)

Incidental to any variance requiring Board of Zoning Appeals approval, when in the opinion of the Board it is in the interest of the City as well as the appellant or applicant, as a condition precedent to granting the requested variance, the Board may require that the appellant or applicant dedicate property to the City for street widening and agree in a recordable instrument that the appellant or applicant will bear the cost of improving such widened portion of the street when it is deemed necessary in the public interest to make such improvements.

(Prior code § 153.014; Ord. 322-1976)

A.

For the purpose of this section, "practical difficulties" or "unnecessary hardships" shall mean conditions inherent in the land or all those elements which taken together indicate that the property under appeal is unique and cannot be put to a conforming use. It is not intended to include the personal situation or condition of the owner or lessee, or any such situation or condition created by him, whether intentional or accidental.

B.

The enumeration of specific instances in Section 153.404 and elsewhere in this Zoning Code in which the Board of Zoning Appeals is authorized to grant variances, shall not be deemed to prevent the Board's authorization of additional proper variances not enumerated in this Zoning Code. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this Zoning Code, the Board shall have the power in a specific case, after public notice and hearing and subject to conditions as it deems necessary to avoid injury to the appropriate use of neighboring property, to vary the application of any such provision in harmony with the general purpose and intent of this Zoning Code so that the public health, safety, and general welfare may be secured and substantial justice done; however, the Board shall not have authority under this section to authorize the location of a use in any district where such use is prohibited.

(Prior code § 153.015; Ord. 322-1976)

The Board may, on application in a specific case, and subject to appropriate conditions and safeguards, authorize the issuance of a permit for the following:

A.

The handling and use of liquefied petroleum gases as an accessory use in any district (after approval by the Superintendent of Building Inspection and the Fire Chief), where no safety hazard to neighboring property will result;

B.

The construction of a structure beyond the building line along the side of a corner lot in a residence district where such building line is back from the street line a greater distance than ten percent of the average width of the lot and where such variance is necessary to permit the appropriate improvement of the lot;

C.

The storage, distribution, and refilling of portable containers of oxygen gases in a Class U4 District (after approval by the Superintendent and Fire Chief); and

D.

Location of a projecting sign over public property in accordance with Section 153.350(A).

E.

Location of internally illuminated sign in a Class U1 or U2 District for legal nondwelling uses.

F.

The placement of signs that do not conform to the size limitations of Section 153.360(E) within Downtown where design concept, viewing distance, use of lighting, colors, symbols, and letter outweighs strict adherence to restrictions by size.

G.

Parking lots in Downtown for five cars or less consistent with Section 153.310(M).

(Prior code § 153.016; Ord. 359-1986; Ord. 358-1986; Ord. 511-1977; Ord. 322-1976)

(Ord. No. 221-2011, § 7, 7-11-11; Ord. 140-2023)

Where the street layout actually on the ground varies from the street layout as shown on the zoning map or the building line map, the Board of Zoning Appeals may apply the designations shown on the mapped streets in such a way as to carry out the intent and purpose of this Zoning Code for the particular section in question.

(Prior code § 153.017; Ord. 322-1976)

The Board of Zoning Appeals shall have jurisdiction to hear all appeals pursuant to Section 153.418. The decisions of the Board shall be made in strict conformance with the provisions of this Zoning Code.

(Prior code § 153.018; Ord. 508-1982)

(Ord. 3-2025)

Editor's note— Ord. 3-2025, § 6, adopted Jan. 6, 2025, amended § 153.412 and in doing so changed the title of said section from "Appeals from Superintendent's decision" to "Appeals from Director's decision," as set out herein.