Appeals and variances, whether heard by the Board of Zoning Appeals or the Planning Commission, shall conform to the procedures and requirements of this chapter. The Board of Zoning Appeals has appellate jurisdiction relative to appeals and variances, except for variances in Planned Unit Development districts, which the Planning Commission shall hear.

(Ord. 186-91. Passed 10-15-92; Ord. 170-11. Passed 10-6-11.)

   Appeals to the Board of Zoning Appeals concerning the interpretation or administration of this Zoning Code may be taken by any person aggrieved, or by any officer or bureau of the legislative authority of the City, including Council or the Planning Commission, affected by any decision of the Zoning Administrator. Such an appeal shall be taken within twenty days after the decision of the Zoning Administrator by filing (with the Zoning Administrator and with the Board of Zoning Appeals) a notice to appeal that specifies the grounds upon which the appeal is being taken. The Zoning Administrator shall transmit to the Board of Zoning Appeals all the papers constituting the record upon which the action appealed from was taken.

(Ord. 186-91. Passed 10-15-92.)

   A notice to appeal that is filed with the Zoning Administrator stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board of Zoning Appeals that, by reason of the facts stated in the application, a stay would (in his or her opinion) cause imminent peril to life and property. In such case, proceedings shall not be stayed (other than by a restraining order that may be granted by the Board of Zoning Appeals or by a court of record on application) on notice to the Zoning Administrator from whom the appeal is taken on due cause shown.

(Ord. 186-91. Passed 10-15-92.)

      (3)   No nonconforming use of neighboring lands and/or structures in the same district, and no permitted or nonconforming use of lands and/or structures in other districts, shall be considered grounds for issuance of a variance. Variances shall not be granted on the grounds of convenience or profit, but only in accordance with the applicable standard set forth in this section.

      (1)   The name, address and telephone number of the applicant;

      (2)   A legal description of the property;

      (3)   A description of the nature of the variance requested;

      (4)   A fee, as provided in or pursuant to this Zoning Code; and

      (5)   Narrative statements establishing and substantiating that the requested variance conforms to the following standards:

         A.   The granting of the variance shall be in accordance with the general purpose and intent of the regulations imposed by this Zoning Code for the district in which it is located and shall not be injurious to the area or otherwise detrimental to the public health, safety and general welfare.

         B.   The granting of the variance will not permit the establishment of any use that is not otherwise permitted in the district.

         C.   A description shall be given of the special circumstances or conditions applicable to the lot and/or structure for which the variance is sought, which are peculiar to such lot and/or structure and do not apply generally to a lot and/or structure in the area, and which are such that the strict application of the provisions of this Zoning Code would deprive the applicant of the reasonable use of such lot and/or structure. Mere loss in value shall not justify a variance; there must be deprivation of reasonable use of land.

         D.   In the case of a use variance, there must be proof of unnecessary hardship created by the strict application of this Zoning Code. It is not sufficient proof of hardship to show that greater profit would result if the use variance were granted. Furthermore, the hardship complained of cannot be self-created, nor can it be established that a hardship exists because the lot and/or structure was purchased with or without knowledge of the restrictions contained in this Zoning Code. The hardship must result from the application of this Zoning Code, it must be suffered directly by the property in question, and evidence of use variances granted under similar circumstances need not be considered.

         E.   In the case of an area variance, there must be proof of practical difficulties created by the strict application of this Zoning Code. The factors to be weighed include, but are not limited to:

            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 the property with knowledge of the zoning restriction;

            6.   Whether the property owner's predicament feasibly can be obviated through some method other than a variance;

            7.   Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.

         F.   The granting of the variance is necessary for the reasonable use of the land and/or structure that will accomplish this purpose.

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

         H.   The granting of the variance requested will not confer on the applicant any special privilege that is denied, because of the provisions of this Zoning Code, to other lots and/or structures in the same district.

      (6)   A list of owners of property and their mailing addresses whose property has any lot line located immediately adjacent to or across the street from any property line of the subject property, and any other persons, as determined by the Zoning Administrator, who may have substantial interest in the case.

(Ord. 186-91. Passed 10-15-92; Ord. 152-99. Passed 7-1-99; Ord. 160-11. Passed 9-1-11; Ord. 170-11. Passed 10-6-11.)

   (a)   The property owner must submit the application at least twenty one days prior to the requested public hearing. All applications submitted within those twenty one days shall be scheduled for the following month's public hearing.

   (b)   The Board of Zoning Appeals shall hold a public hearing within sixty days after the receipt of an application for an appeal or variance from the Zoning Administrator or an applicant.

(Ord. 133-98. Passed 4-2-98; Ord. 135-17. Passed 6-15-17; Ord. 160-18. Passed 8-16-18.)

   (c)   Before conducting the public hearing provided for in subsection (a) hereof, notice of such hearing shall be given in one or more newspapers of general circulation in the City at least ten days before the date of such public hearing. The notice shall set forth the time and place of the public hearing, plus the nature of the proposed appeal or variance.

(Ord. 186-91. Passed 10-15-92; Ord. 135-17. Passed 6-15-17; Ord. 160-18. Passed 8-16-18.)

   (d)   Before conducting the public hearing provided for in subsection (a) hereof, written notice of such hearing shall be sent, by first class mail, by the Zoning Administrator at least ten days prior to the hearing, to all parties in interest, unless a written notice of the filing and hearing has been waived by the property owners. (Owners of the property that are immediately adjacent to or across the street of from any property line of the subject property). The notice shall contain the same information required of notices published in newspapers, as provided in subsection (b) hereof.

(Ord. 152-99. Passed 7-1-99; Ord. 135-17. Passed 6-15-17; Ord. 160-18. Passed 8-16-18.)

   Within thirty days after the required public hearing, the Board of Zoning Appeals shall, in writing, either approve, approve with additional conditions and safeguards, or disapprove, the request for the appeal or variance. For any variance approval, the Board of Zoning Appeals shall make a further finding, in writing, that the reasons set forth in the application justify the granting of the variance that will make possible a reasonable use of the land and/or structure.

(Ord. 186-91. Passed 10-15-92.)

   No order of the Board of Zoning of Appeals that grants a variance shall be valid for a period longer than twelve months from the date of such order, unless all required zoning, building, occupancy and/or other appropriate permits and/or certificates are obtained within such period and the erection or alteration of a building is started, or the use is commenced, within such period.

(Ord. 186-91. Passed 10-15-92.)

   Variances from the regulations of this Zoning Code shall not be granted unless the Board of Zoning Appeals makes specific findings of fact, based directly on the particular evidence presented to it, that support conclusions that the standards and conditions imposed in Section 1244.04(b) and (c) (if applicable) have been met by the applicant. Variances may be granted for the following reasons:

   (a)   To permit any yard and/or setback less than required by this Zoning Code.

   (b)   To permit the use of a lot for a use otherwise prohibited solely because of the insufficient area and/or width of the lot. Generally, the respective area and width of the lot should not be less than eighty percent of the required area and/or width.

   (c)   To permit the same off-street parking facility to qualify as required facilities for two 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.

   (d)   To reduce the applicable off-street parking or loading space required. Generally, either space should not be reduced by more than thirty percent of the required space.

   (e)   To allow for the deferment of required parking facilities for a reasonable period of time, such period of time to be specified in the variance.

   (f)   To increase the maximum distance that required parking spaces are permitted to be located from the use served, but generally by not more than forty percent.

   (g)   To increase the maximum allowable size, height or area of signs on a lot, but generally by not more than twenty-five percent.

   (h)   To increase the maximum lot coverage of any use, but generally by not more than twenty-five percent.

(Ord. 186-91. Passed 10-15-92.)

   (a)   Appeals from a decision of the Board of Zoning Appeals may be made to the courts, as provided by law.

   (b)   Actions taken by and decisions of the Board of Zoning Appeals shall be subject to a period of ten business days during which any person adversely impacted by such action or decision may file a request for reconsideration. The request shall be in writing and will state the cause for reconsideration. The Board shall schedule a hearing on the request for reconsideration at the next allowable meeting of the Board. A request for reconsideration filed in accordance with this section shall toll the time for appeals to the courts from the date the request for reconsideration is received until such time as the Board issues its written decision on the request for reconsideration.

(Ord. 186-91. Passed 10-15-92; Ord. 183-11. Passed 11-17-11.)