The Planning and Zoning Commission shall hear and make recommendations to the corporate authorities and the corporate authorities shall decide. all applications for variations of the provisions of this title in harmony with its general purpose and intent. Only in specific instances hereinafter set forth, and only after a public hearing before the Planning and Zoning Commission shall the corporate authorities make their decisions which shall after a finding is made specify the reasons for such action, which shall be based upon the standards prescribed in section 12-15-4 of this chapter. (2005 Zoning Code; amd. Ord. 20-17, 3-17-2020)

An application for a variation may be made by any person, firm or corporation having a freehold interest, a possessory interest entitled to exclusive possession, a contractual interest which may become a freehold interest, an option to purchase, or any exclusive possessory interest applicable to the land or land and improvements described in the application for a variation. (2005 Zoning Code)

   A.   Filing Of Application: An application for variation shall be filed with the planning and zoning commission at the office of the zoning administrator. The zoning administrator shall notify the planning and zoning commission. The application shall contain such information as the Planning and Zoning Commission and Zoning Administrator may from time to time, by rule, provide.

   B.   Hearing And Recommendation: No more than ninety (90) days after the filing of such application, a hearing shall be held before the Planning and Zoning Commission on the application. After holding a hearing, the Planning and Zoning Commission shall approve a recommendation and report, which recommendation and report shall address whether or not the standards for variations in this chapter have been met.

   C.   Notice: Notice of such a hearing shall be published at least once, but not more than thirty (30) nor less than fifteen (15) days before the hearing, in one or more newspapers of general circulation in Berkeley. The published notice shall be supplemented by sending copies of same to the property owners, as recorded in the office of the county recorder of deeds and as appears from the tax records of this county of all property within two hundred fifty feet (250') in each direction of the location for which the variation is requested, and the number of feet occupied by all public roads, streets, alleys, and other public ways shall be excluded in determining the two hundred fifty foot (250') requirement. (2005 Zoning Code; amd. Ord. 20-17, 3-17-2020)

   A.   Findings And Considerations: The corporate authorities, upon report of the Planning and Zoning Commission and without further public hearing, may grant or deny a variation of the regulations of this chapter. The corporate authorities shall not grant a variation of the regulations of this title as authorized herein unless they shall have made findings of fact based upon the evidence presented to them in each specific case that:

      1.   The property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in the district in which it is located; and/or

      2.   The plight of the owner is due to unique circumstances;

      3.   The variation, if granted, will not alter the essential character of the locality; and

      4.   For the purpose of implementing the above rules, the corporate authorities shall also, in making its determination whether there are practical difficulties or particular hardships, take into consideration the extent to which the following facts favorable to the applicant have been established by the evidence:

         a.   The particular physical surroundings, shape, or topographical condition of the specific property involved would result in a particular hardship upon the owner, as distinguished from a mere inconvenience, if the strict letter of the regulations were carried out;

         b.   The condition upon which the petition for a variation is based would not be applicable generally to other property within the same zoning classification;

         c.   The purpose of the variation is not based exclusively upon a desire to make more money out of the property;

         d.   The alleged difficulty or hardship has not been created by any person 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; and

         f.   The proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion in the public streets, or increase the danger of fire or endanger the public safety, or substantially diminish or impair property values within the neighborhood.

   B.   Imposition Of Conditions And Restrictions: The corporate authorities may impose such conditions and restrictions upon the premises benefited by a variation as may be necessary to comply with the standards set out in this section, and reduce or minimize the injurious effect of such variation upon other property in the neighborhood, and to better carry out the general intent of this title. (2005 Zoning Code; amd. Ord. 20-17, 3-17-2020)

   A.   Instances For Allowing Of Variations: Variations from the regulations of this title shall be granted by the corporate authorities only in accordance with the standards set out in section 12-15-4 of this chapter, and may be granted in the following instances and any other reasonable instances necessary to relieve hardship:

      1.   To permit a variation to height requirements.

      2.   To allow for variations for residential front porch sizes so long as the hardship criteria, building to lot density and setback requirements of existing ordinances are met.

      3.   To permit any front, side or rear yard or setbacks from the lot line or primary structure less than that required by the applicable regulations.

      4.   To permit the use of a lot or lots of record on the effective date of this title for a use otherwise prohibited solely because of the insufficient area of the lot or lots, but in no event shall the respective area and width of the lot or lots be less than seventy five percent (75%) of the required lot area and width; and provided that, the corporate authorities in considering any request for permission to build upon an undersized tract, including an undersized platted lot or combination of undersized platted lots, shall whenever such combination is possible require that two (2) or more undersized lots be combined, or subdivided into building sites of at least or substantially the same size as required by section 12-6-2 of this title. The corporate authorities shall have the power to permit the use of building sites smaller than required where such combination and subdivision cannot be done without substantial hardship to the owner or owners of the lots in question. Where a number of undersized lots is owned as a tract, the corporate authorities shall limit variations to permit as little divergence as possible from the tract size required by this title. In its consideration, both of the possible combination of undersized lots into proper building sites, and the division of large lots into building sites not of the sizes herein required, the board shall consider both the hardship to the property owner and the type of building sites already used in the immediate neighborhood.

      5.   To permit the same off street parking facility to qualify as required facilities for two (2) or more uses; 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.

      6.   To reduce the applicable off street parking or loading facilities by fifty percent (50%).

      7.   To allow parking lots in residence districts and municipal or governmental uses in any district.

      8.   To grant additional time for, or permit extension of, a nonconforming use.

      9.   To increase the number of accessory uses permitted on a residential lot.

   B.   Time Limit: No order of the corporate authorities granting a variation shall be valid for a period longer than six (6) months from the date of such order unless a building permit is obtained within such period and the erection or alteration of a building is started or the use is commenced within such period. (2005 Zoning Code; amd. Ord. 07-16, 7-17-2007; Ord. 11-25, 7-19-2011; Ord. 20-17, 3-17-2020)