Appeals to the Board of Zoning Appeals may be submitted by any person, firm or corporation, or by any officer, board or department of the Municipality, deeming himself or itself to be adversely affected by a decision of the Zoning Administrator, or by any administrative officer deciding matters relating to this Code.

(Ord. 5-2005, passed 3-23-05)

   Applications for appeal shall be filed with the Zoning Administrator and with the Board of Zoning Appeals within 20 days after the date of any adverse order, requirement, decision, or determination. The application for appeal shall include reference to the decision, the provision of this Code from which the appeal is sought, reasons for the appeal and a list of all property owners lying within 300 feet of any part of the property to which such appeal relates, including their addresses and permanent parcel numbers as shown on the current tax duplicate of the Office of the Hamilton County Treasurer. The Zoning Administrator shall transmit to the Board of Zoning Appeals all papers constituting the record upon which the action being appealed was taken.

(Ord. 5-2005, passed 3-23-05)

   When an application for appeal has been filed in proper form with the Board of Zoning Appeals and the application fee has been paid, the Zoning Administrator shall place the request upon the calendar for public hearing before the Board of Zoning Appeals, which shall be conducted within 60 days. The Board may recess such hearings from time to time, and, if the time and place of the continued hearing is publicly announced at the time of the adjournment, no further notice shall be required. Any interested person may appear at the public hearing in person or by attorney.

(Ord. 5-2005, passed 3-23-05)

   Notice of such public hearing shall be given by first class mail to the parties making the request for the appeal and to the property owners within 300 feet of the property to which such appeal relates. Such notification shall be sent to the names and addresses of such owners appearing on the County Auditor's current tax list. If the address appearing on the tax list is that of a lending institution or other person or entity clearly recognizable as not being the owner, then written notice shall be mailed to such institution, person, or entity at the listed address and to the named owners at the street address of the property. Further notice shall be given in one or more newspapers of general circulation in the city. All notices shall be made at least 14 days before the date of said public hearing. All notices shall set forth the time, place and nature of the public hearing. Failure of delivery of such notice shall not invalidate action taken on such application. The Board may continue or defer its consideration and no further notice shall be required.

(Ord. 5-2005, passed 3-23-05)

   An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Administrator shall certify to the Board of Zoning Appeals after the notice of the appeal has been filed, that by reason of facts stated in the permit, a stay would cause imminent peril to life or property. In such case, proceedings shall not be stayed by other than a restraining order granted by a court having lawful jurisdiction.

(Ord. 5-2005, passed 3-23-05)

   The Board of Zoning Appeals shall review the appeal. To aid in their review, the Board may transmit the application to appropriate administrative departments and professional consultants for review and comment. Any reports, comments or experts opinions shall be compiled by the Zoning Administrator and transmitted to the Board prior to the time of the Board's review.

(Ord. 5-2005, passed 3-23-05)

   Within the limits of the powers set forth in this Code, the Board of Zoning Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination being appealed, and to that end shall have all the powers of the officer from whom the appeal is taken, and it may direct the issuance of a permit or certificate.

   (A)   Any decision by the Board of Zoning Appeals requires the concurrence of four or more members. The Board shall render a decision on the appeal within 30 days from the date of the hearing unless an extended period of time is mutually agreed upon by the applicant and the Board. If the Board fails to act within such period of time, the appellant may determine the appeal has been denied.

   (B)   The Board shall notify the appellant in writing of the decision of the Board, which shall include the reasons for the action taken.

(Ord. 5-2005, passed 3-23-05)

   Once the appellant has received the Board's decision, he may submit an application for a zoning certificate or conditional use permit that complies with the Board of Zoning Appeal's decision. A copy of the Board of Zoning Appeal's decision shall be attached to the application.

(Ord. 5-2005, passed 3-23-05)

   If the appeal is denied by the Board of Zoning Appeals, the Board need not rehear the application within 6 months after the date of the decision unless the Board determines there is just cause. A vote of five of the seven members is required for reconsideration.

(Ord. 5-2005, passed 3-23-05)

   The Board of Zoning Appeals may authorize upon appeal in specific cases of a dimensional or area variance from the terms of this Code as will not be contrary to the public interest according to the following procedures:

   (A)   Definition. Dimensional or area variances shall be considered those variances from a zoning regulation that establishes minimum or maximum areas, heights, distances, separation volume or any other measurement, which is expressed in terms of a geometric measurement.

   (B)   Application Requirements. An application for a dimensional variance shall be filed with the Zoning Administrator for review by the Board of Zoning Appeals upon the forms provided, and shall be accompanied by the following requirements necessary to convey the reason(s) for the requested 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 pursuant to division (C) below;

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

      (7)   Payment of the application fee;

      (8)   A list of all property owners lying within 300 feet of any part of the property on which the variance is proposed, including their addresses and permanent parcel numbers;

      (9)   Any other documents deemed necessary by the Zoning Administrator.

   (C)   Review for Completeness. Upon receipt of a written request for a dimensional variance, the Zoning Administrator shall make a preliminary determination whether such application provides the information necessary for review and evaluation. If it is determined that such application does not provide the information necessary for such review and evaluation, the Zoning Administrator shall within 10 days so advise in writing the applicant of the deficiencies and shall not further process the application until the deficiencies are corrected. If the applicant fails to correct such deficiencies within 20 days of the date of the written notice from the Zoning Administrator or such an extension granted from the 20 days deadline, then such appeal shall be dismissed as not being timely filed.

   (D)   Review by the Board. According to the procedures established for appeals in §§ 150.2003 and 150.2004, the Board shall hold a public hearing and give notice of the same. The Board shall review each application for a dimensional variance to determine if it complies with the purpose and intent of this Code and evidence demonstrates that the literal enforcement of this Code will result in practical difficulty. The following factors shall be considered and weighed by the Board to determine practical difficulty:

      (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 non-conforming 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 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 variance;

      (5)   Whether the variance would adversely affect the delivery of governmental services such as water, sewer, 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 a variance;

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

      (10)   Whether the granting of the variance requested will confer on the applicant any special privilege that is denied by this regulation to other lands, structures, or buildings in the same district.

   (E)   Requests for Additional Information. The Board of Zoning Appeals may request that the applicant supply additional information that the Board deems necessary to review and evaluate the request for a variance.

   (F)   Additional Conditions and Safeguards. The Board may further prescribe any conditions and safeguards that it deems necessary to ensure that the objectives of the regulation(s) or provision(s) to which the variance applies will be met.

   (G)   Action by the Board. The Board shall either approve, approve with supplementary conditions as specified in Division (F) above, or disapprove the request for dimensional variance. In no case shall the Board of Zoning Appeals approve a variance that establishes a nonconforming use of land, building or structure where one had not previously existed.

   (H)   Term and Extension of Variance. Dimensional or area variances shall be non-assignable without the written approval of the Board of Zoning Appeals and shall expire one year from the date of their enactment, unless prior thereto, the applicant commences actual construction in accordance with the granted variance or an extension of time has been granted by the Board of Zoning Appeals. There shall be no modification of variances except by further consideration of the Board. Once the time limit pursuant to this section has expired, a request for a variance shall be considered to be a new application for a variance and shall meet all requirements for application and review pursuant to this section. Dimensional variances approved in conjunction with a development plan, pursuant to § 150.1414(C), shall remain valid for a one-year period in compliance with § 150.1416.

(Ord. 5-2005, passed 3-23-05)

   In the event a proposed use is not listed as a permitted or conditional use in the district in which it is proposed, but is a permitted or conditional use in another district, the Planning Commission and Council may determine that instead of rezoning the parcel to the district in which the use is permitted, it is in the public interest to authorize the establishment of the use. The use of this provision, however, is not intended to be a substitute for a zoning amendment or the establishment of an appropriate conditional use. The establishment of such proposed use shall be limited to single parcels or multiple parcels, the sum of which does not exceed approximately one-half to three-fourths of an acre in size. The review and approval of the establishment of such use on the specific parcel noted on the application shall be conducted according to the conditional use procedures and submission requirements set forth in Chapter 150.16, including confirmation by Council and the right to appeal the decision from the Board of Zoning Appeals to Council.

   (A)   In order to grant conditional use approval to a use that is not specifically listed in the district, the Planning Commission and Council shall determine that strict compliance with the terms of this Code will result in unnecessary hardship to the applicant. The applicant shall demonstrate such hardship, by clear and convincing evidence that all of the following criteria are satisfied:

      (1)   The specific parcel cannot be put to any economically viable use under any of the permitted or conditional uses listed in the Schedule of Uses in the zoning district in which the property is located;

      (2)   The hardship stems from a condition that is unique to the property at issue and not found in the same zone or district, therefore the granting of the requested use is not likely to be requested by other property owners;

      (3)   The hardship condition is not created by actions of the applicant;

      (4)   The granting of the proposed use will not adversely affect the rights of adjacent property owners or residents;

      (5)   The granting of the proposed use will not adversely affect the public health, safety or general welfare;

      (6)   The proposed use will be consistent with the general spirit and intent of the Code; and

      (7)   The proposed use sought is the minimum that will afford relief to the applicant.

   (B)   The permit shall authorize the particular use on the specific parcel for which it was approved. The operation of such use as specified on the permit shall not be assigned to any other subsequent use or party by virtue of ownership, lease or similar agreement. The breach of any condition, safeguard or requirement shall constitute a violation of this Zoning Code.

   (C)   Approval of the proposed use shall not be deemed to authorize such use on any other parcel in the district, except when approved for a specific parcel according to this section.

(Ord. 5-2005, passed 3-23-05)