Gambier City Zoning Code
CHAPTER 154
ZONING VARIANCES
§ 154.01 VARIANCE DEFINITION.
For the purpose of this chapter, the following definition shall apply unless the context clearly indicates or requires a different meaning.
VARIANCE. A modification of the strict terms of the zoning regulations where such modification will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the applicant, a literal enforcement of the regulations would result in unnecessary and undue hardship. The village differentiates between a use variance and an area variance, as more fully set forth below.
(Ord. 2008-13, passed 11-3-2008)
§ 154.02 USE VARIANCE.
A use variance allows a landowner to use existing property in a manner not permitted by the zoning regulations and inconsistent with uses in the surrounding area. An example of a use variance is a commercial establishment, such as a nursery or garage, in a residential zone.
(Ord. 2008-13, passed 11-3-2008)
§ 154.03 USE VARIANCE CONSIDERATIONS.
(A) In order for a use variance to issue, an applicant must demonstrate that unnecessary hardship exists. An unnecessary hardship exists where the hardship is unique to a particular property, and where the uses permitted by the zoning ordinance are not economically feasible. A demonstration that the property could be put to a more profitable use, standing alone, is insufficient to establish unnecessary hardship. Moreover, a person who purchases land with knowledge of the zoning restrictions is said to have created his or her own hardship and is not entitled to a use variance to relieve such a condition. This is commonly referred to as the “self-created” or “self-imposed” hardship rule.
(B) Generally, a person who knowingly acquires property intending to use it in a manner prohibited by the existing zoning regulations may not thereafter obtain a use variance based upon unnecessary hardship. The self-created hardship rule has been applied most frequently to persons who acquired land for a purpose outlawed by the zoning regulations. Verbalized in these terms, the self-imposed hardship rule militates only against those who acquire property intending to use the land for a prohibited purpose, speculating that the use variance would be available or might be obtained through affirmative efforts. By the same token, this approach spares the person who purchased with knowledge of the restrictions and conformed his or her use, but because of changed conditions on adjacent properties, suffers hardship independent of, and without regard to, any self-inflicted conditions.
(Ord. 2008-13, passed 11-3-2008)
§ 154.04 AREA VARIANCE.
An area variance authorizes deviations from restrictions upon the construction and placement of buildings and other structures. Specifically, this device allows modification of area, yard, height, floor space, frontage, density, setback and similar restrictions. An example of an area variance is where a building is constructed with floor area in excess of the limit prescribed in the regulations.
(Ord. 2008-13, passed 11-3-2008)
§ 154.05 AREA VARIANCE CONSIDERATIONS.
(A) Area variances require only a demonstration that practical difficulties exist. The practical difficulties standard is a less stringent and more “nebulous” standard than the unnecessary hardship standard.
(B) To determine whether a property owner seeking an area variance has encountered practical difficulties in the use of his or her property, Village Council shall generally consider a list of seven nonexclusive factors:
(1) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance;
(2) Whether the variance is substantial;
(3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
(4) Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage);
(5) Whether the property owner purchased with knowledge of the zoning restriction;
(6) Whether the property owner’s predicament feasibly can be obviated through some method other than a variance; and
(7) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.
(C) Unlike the unnecessary hardship standard, purchase with knowledge of the zoning restrictions is not determinative under the practical difficulties exercise. Rather, a consideration and balancing of all factors, including it, must be made. The reason for adopting the less stringent standard for area variances is that when the variance is one of area only, there is no change in the character of the zoned district and the neighborhood considerations are not as strong as in a use variance.
(Ord. 2008-13, passed 11-3-2008)
§ 154.06 APPLICATION.
Any landowner desiring to apply for a variance to the village zoning regulations shall complete the application for variance to the village zoning regulations form and shall file it with the village. An application for variance to the village zoning regulations shall be considered filed when it is delivered to the Zoning Inspector, Village Administrator or Fiscal Officer Assistant, along with the required filing fee. As used herein, LANDOWNER shall include any person or entity under contract with the owner of record for the sale of the property, where such contract is contingent upon receipt of a variance for the property.
(Ord. 2008-13, passed 11-3-2008)
§ 154.07 FILING FEE.
A filing fee of $50 shall be required for filing an application for variance to the village zoning regulations.
(Ord. 2008-13, passed 11-3-2008)
§ 154.08 PUBLIC NOTICE.
Notice of an application for variance to the village zoning regulations shall be forwarded by ordinary mail to all property owners of record adjoining the lot or property, which is the subject of the application. Such notice shall be postmarked a minimum of ten days prior to any hearing or action on such application by the Village Council. Further, such notice shall be posted at the village post office at least seven days prior to any hearing or action on any application for variance to the village zoning regulations. In order to facilitate the foregoing notice provisions and adequate community input, an application for variance to the village zoning regulations must be filed at least 21 days prior to any regular or special meeting of the Village Council at which it is to be considered.
(Ord. 2008-13, passed 11-3-2008)
§ 154.09 HEARING AND CONSIDERATION.
(A) The applicant, or the applicant’s designee, shall appear at the hearing and give testimony in support of the application. In the event the applicant or applicant’s designee fails to appear and give testimony at the hearing, it shall be conclusively presumed that the application has been withdrawn, and no action shall be taken. Any adjoining landowner, and any other person or entity owning real property in the village, may appear and present testimony in favor of, or in opposition to, the application. All testimony shall be given under oath to be administered by the President of Council or the Mayor, and a verbatim transcript of the hearing shall be made.
(B) At the conclusion of the hearing, the Village Council may vote to grant the variance, deny the variance or continue the hearing for no more than 45 days to enable additional information to be received.
(C) The motion to grant or deny the variance shall set forth the reasons for such action, making specific reference to the facts adduced at the hearing, the considerations set forth above and any other relevant factors affecting the decision.
(Ord. 2008-13, passed 11-3-2008)