Middleburg Heights City Zoning Code

CHAPTER 1127

Board of Zoning Appeals

1127.01 BOARD OF ZONING APPEALS ORGANIZATION.

(a) The Board of Zoning Appeals is established by Charter Section 10.03.

(b) The Board of Zoning Appeals shall consist of five regular members appointed by the Mayor with the approval of a majority of the members of Council. The Board shall also include two alternate members, the Mayor or his or her representative and one member of Council chosen by the President of Council shall participate as nonvoting members.

(c) The terms and qualifications of each member of the Board of Zoning Appeals shall be in accordance with Section 10.03 of the City Charter.

(d) The Board of Zoning Appeals shall elect, from among its members, a Chairperson and a Vice-Chairperson.

(e) The Board shall adopt such rules and regulations, not inconsistent with this Zoning Code or the Charter of the City, as may be necessary to carry into effect the powers, duties and responsibilities set forth in this chapter.

(Ord. 2022-24. Passed 5-24-22.)

1127.02

The Board of Zoning Appeals shall have such powers and duties as are conferred by the Charter of the City, by ordinance of Council or by the general laws of the State and shall include the following purposes:

(a) Area Variances. Hear and decide upon applications for area variances from the provisions of this Zoning Code, subject to the standards set forth in Section 1127.06 .

(b) Administrative Appeals. Hear and decide administrative appeals where it is alleged there is error in any order, requirement, decision or determination made by the Planning Commission, City Council acting in an administrative capacity, the Residential Design Review Board, the Building Commissioner or other authorized administrative official in the enforcement of this Zoning Code, as provided in Section 1127.08 .

(Ord. 2022-24. Passed 5-24-22.)

1127.03 BOARD OF ZONING APPEALS PUBLIC HEARING PROCEDURE.

(a) The Board of Zoning Appeals shall schedule regular monthly meetings to conduct business as required.

(b) Public Hearing Procedure for Administrative Appeals and Area Variance Applications. Before the Board of Zoning and Building Appeals may take final action on any administrative appeal or application for an area variance, it shall hold a public hearing and give notice thereof in general terms of the subject of the appeal by posting such notice at the City Hall and by mailing it by first class mail at least fifteen days prior to the public hearing to the owners of property contiguous to and directly across the street from the parcel or parcels which are the subject of the appeal, such notices to be mailed to the addresses of such owners appearing on the County Auditor’s current tax list or the County Treasurer’s mailing list.

(1) The Board shall inspect the site which is the subject of an appeal at some time prior to taking final action on the appeal.

(2) The Board shall act within forty-five days after receipt of all required information, and failure to act within such period shall be considered disapproval of the appeal, unless an extension of time is mutually agreed upon. Before making any decision on an appeal, the Board shall hold a public hearing or hearings at such times as are determined by the Board itself.

(3) All hearings conducted by the Board shall be open to the public. Any person may appear and testify at a hearing, either in person or by a duly authorized agent or attorney. The Board shall have the power to subpoena and require the attendance of witnesses, to administer oaths, to compel testimony and to produce reports, findings and other evidence pertinent to any issue referred to it for decision.

(4) The Board may call upon any City department or outside consultant for assistance in the performance of its duties and it shall be the duty of such departments to render such assistance to the Board as may reasonably be required.

(c) On-Site Posted Notice of Public Hearing. At least ten days prior to any scheduled public hearing of the Board of Zoning Appeals upon an appeal from a decision of the Building Commissioner or other officer, or upon a request for an area variance, the Building Commissioner shall cause a sign to be posted upon the site which is the subject matter of such appeal or request indicating that such hearing will be had by the Board and further indicating the time and date of such public hearing.

(Ord. 2022-24. Passed 5-24-22.)

1127.04 MEETING QUORUM AND DECISIONS.

(a) Three members shall constitute a meeting quorum for action by the Board of Zoning Appeals.

(b) The Board shall act by motion, in which a majority of all members appointed to the Board concur.

(c) Every Board of Zoning Appeals decision shall be accompanied by findings of fact, based on testimony and evidence and specifying the reason for granting or denying the appeal application.

(d) A member of the Board shall not be qualified to vote if he or she has not attended the hearing or if he or she has a direct or indirect conflict of interest in the subject issue.

(e) Non-decision items, such as a continuance or approval of meeting minutes, shall require a majority of the quorum to concur.

(Ord. 2022-24. Passed 5-24-22.)

1127.05 NOTICE TO COUNCIL AND PLANNING COMMISSION.

Upon issuance by the Board of Zoning Appeals of any ruling, determination or order, the Secretary of the Board shall send, within seven days of the date of such ruling, determination or order, a copy thereof to the Clerk of Council and to the Secretary of the Planning Commission who shall present such report at the next regular meeting.

(Ord. 2022-24. Passed 5-24-22.)

1127.06 AREA VARIANCE.

(a) Area Variance Application Required. Upon receipt of a complete application, the Board of Zoning Appeals may authorize an area variance from the terms of this Code as will not be contrary to the public interest according to the following procedures and the area variance standards of review as set forth in this section. Development density shall not be eligible for area variance consideration.

(b) Area Variance Definition. Area variances shall be defined as those variances from a zoning regulation that establishes minimum or maximum areas, heights, distances, separation volume or any other United States customary unit of measurement.

(c) Application Requirements. An application for an area variance shall be filed with the Building Commissioner upon the forms provided by the City, and shall be accompanied by the following requirements necessary to convey the reason(s) for the requested area variance:

(1) Name, address and phone number of applicant(s).

(2) Proof of ownership, legal interest or written authority.

(3) Description of property or portion thereof.

(4) Description or nature of variance requested.

(5) Narrative statements establishing and substantiating the justification for the variance.

(6) Site plans, floor plans, elevations and other drawings at a reasonable scale to convey the need for the variance.

(7) A list of all property owners located within two hundred feet of any part of the property on which the variance is proposed, including their addresses and permanent parcel numbers.

(8) Full payment of the variance application fee.

(9) Any other documents or information deemed reasonably necessary by the Building Commissioner in order to adequately review and make a determination on the application.

(d) Public Hearing. The Board of Zoning Appeals shall hold a public hearing as set forth in Section 1127.03 to consider each area variance application.

(e) Area Variance Standards of Review. The Board of Zoning Appeals shall review each application for an area variance to determine if it complies with the purpose and intent of this Zoning Code and Comprehensive Master Plan based on sufficient evidence demonstrating that the literal enforcement of this Code will result in a practical difficulty. A practical difficulty exists whenever a zoning standard unreasonably deprives a landowner of a permitted use of their property. All of the factors set forth in this section do not need to be satisfied; rather, they shall be weighed together in the analysis as part of a balancing test. The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of their property include, but are not limited to:

(1) Whether special conditions and circumstances exist which are peculiar to the land or structure involved and which are not applicable generally to other lands or structures in the same zoning district. Examples of such special conditions or circumstances are exceptional irregularity, narrowness, shallowness or steepness of the lot, or adjacency to nonconforming and inharmonious uses, structures or conditions.

(2) Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the area variance.

(3) Whether the variance is substantial and is the minimum necessary to make possible the reasonable use of the land or structures.

(4) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer substantial detriment as a result of the area variance.

(5) Whether the variance would adversely affect the delivery of governmental services such as water, sewer, and trash pickup.

(6) Whether the property owner purchased the property with knowledge of the zoning restrictions.

(7) Whether special conditions or circumstances exist as a result of actions of the owner.

(8) Whether the property owner’s predicament feasibly can be obviated through some method other than an area variance.

(9) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting an area variance.

(f) Request for Additional Information. The Board of Zoning Appeals may request that the applicant supply additional information that the Board deems necessary to adequately review and evaluate the request for an area variance.

(g) Area Variance Conditions. In authorizing an area variance, the Board of Zoning Appeals may apply such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the interest of furthering the purposes of this Zoning Code, furthering the public interest and in support of the Comprehensive Master Plan. In authorizing an area variance with attached conditions, the Board may require such evidence or statements, as it may deem necessary, that the conditions attached are and shall be complied with. Specifically, the Board may attach one or more of the following conditions to an area variance:

(1) Paving.

(2) Landscaping and/or other screening fence or wall.

(3) Amount and location of off-street parking, loading and signs.

(4) Direction and intensity of outdoor illumination.

(5) Cleaning and painting.

(6) Performance standards intended to control or eliminate or reduce smoke, dust, radiation, gas, noise or odor.

(7) Hours of operation.

(8) Outdoor storage.

(9) Other conditions as may be deemed appropriate and necessary by the Board to adequately satisfy the applicable standards of review.

(h) Final Approval of Area Variances by City Council. Any action by the Board of Zoning Appeals in granting an area variance concerning the height of a building or structure, or concerning the minimum lot area per dwelling unit, shall not become effective until such decision has been referred to City Council and has been approved by City Council after considering the standards of review set forth in this section.

(i) Withdrawal or Change of an Area Variance. An area variance, once granted, shall not be withdrawn or changed unless there is a substantial change of circumstances, or, if after the expiration of one year, no substantial construction is undertaken in accordance with the terms and conditions under which such area variance was granted. In such circumstances, the Building Commissioner shall provide the applicant with written notice of the noncompliance. Upon failure to fully comply with the area variance requirements within thirty days of receiving the notice, the area variance shall be deemed null and void and all regulations governing the parcel and land use(s) in question shall revert to those in effect before the area variance was granted.

(j) Violation of Area Variance Conditions. If the area variance is approved with conditions, the Board shall include the list of specific variance conditions upon which the variance was granted within the documented minutes of the public hearing meeting. Violations of such conditions shall be enforced in the following manner:

(1) Upon a finding that one or more area variance conditions have not been satisfied, the Building Commissioner shall notify the applicant of the violation in writing by certified mail.

(2) The applicant shall have thirty days from the receipt of the notice of violation to fully satisfy the area variance condition(s).

(3) Failure to satisfy the condition(s) within the thirty day period shall result in the revocation of the area variance approval.

(k) Approval Time Limit. Approved area variances that are not fully acted upon within twelve months shall be considered null and void.

(l) Final Decision. If an area variance application has been denied by the Board of Zoning Appeals, the applicant shall have the right to appeal the decision under the administrative appeals process as set forth in Chapters 2505 and 2506 of the Ohio Revised Code. After the applicant has exhausted all available appeals rights, the denial shall be considered a final decision and no application on the same matter may be accepted by the Board of Zoning Appeals.

(Ord. 2022-24. Passed 5-24-22.)

1127.07 USE VARIANCE PROHIBITED.

(a) For the purpose of this Zoning Code, a use variance request is not authorized and shall not be considered nor granted by the Board of Zoning Appeals.

(b) A “use variance” is defined as a variance that is granted to allow the establishment or expansion of a use of land that is not permitted in the zoning district in which the property is located.

(Ord. 2022-24. Passed 5-24-22.)

1127.08 ADMINISTRATIVE APPEAL.

This section sets out the procedures to follow when a person or entity claims to have been aggrieved or affected by an administrative decision made in the enforcement of this Code.

(a) Applicability. Administrative appeals may be initiated by a person or entity alleging there is error in any order, requirement, decision or determination made by the Planning Commission, City Council acting in an administrative capacity, the Residential Design Review Board, Building Commissioner or other authorized administrative official in the enforcement of this Zoning Code.

(b) Administrative Appeal Procedure.

(1) Step 1 - application.

A. An administrative appeal pursuant to this Section shall be initiated by filing a written appeal of the administrative decision or determination within thirty days of the date of the order, decision, determination.

B. The applicant shall submit an application based on a form provided by the Building Commissioner.

(2) Step 2 - forwarding of the record to the BZA. Upon receiving the written appeal of an administrative decision or determination, the Building Commissioner shall transmit the written appeal with all papers, documents, and other materials related to the appealed decision or determination to the Board of Zoning Appeals. This material shall be incorporated into the record of the appeal.

(3) Step 3 - BZA review and decision.

A. The Board of Zoning Appeals shall hold a public hearing within forty-five days of the filing of the appeal provided the notification requirements have been satisfied pursuant to Section 1127.03.

B. Any person affected by the appeal may appear at the public hearing and testify in person, or by attorney or agent.

C. The Board of Zoning Appeals shall render a decision on the appeal without unreasonable delay. The Building Commissioner shall notify the appellant in writing of the decision of the Board.

(1) An administrative decision or determination shall not be reversed or modified unless there is competent, material, and substantial evidence in the record that the decision or determination fails to comply with either the procedural or substantive requirements of this Zoning Code.

(2) Within its powers, the Board may reverse or affirm, wholly or in part, or modify, any such order, requirement, decision or determination as, in its opinion, ought to be made under the circumstances and, to that end, it shall have all the powers of the officer from whose decision the appeal is taken.

(d) Stay of Proceedings. A properly submitted administrative appeal application shall stay all administrative proceedings by the City in furtherance of the action appealed, unless the Building Commissioner certifies to the Board of Zoning Appeals that a stay would cause imminent peril to life or property, in which case the administrative proceedings shall not be stayed unless a restraining order is granted by the Board of Zoning Appeals for good cause shown.

(Ord. 2022-24. Passed 5-24-22.)

1127.09 APPEALS OF BOARD OF ZONING APPEALS DECISIONS.

(a) The Court of Common Pleas, as provided in R.C. Chapters 2505 and 2506, shall hear and decide all Board of Zoning Appeals decisions where it is alleged that there is an error in any interpretation, judgment, determination, or decision made by the Board in the administration and/or enforcement of the provisions of this Zoning Code.

(b) The procedure for filing such appeal shall be determined by the applicable statutes of the Ohio Revised Code.