The purpose of this chapter is to provide for deviations from the literal provisions of this title in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this title. "Practical difficulties", as used in connection with the granting of a variance, means that the property owner proposed to use the property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. A variance shall not be permitted for the establishment or expansion of a use. (Ord. 2011-06, 6-27-2011)

   A.   Request for variances, as provided within this title, shall be filed with the city on an official application form. Such application shall be accompanied by a fee as established by the city's fee schedule. The city, after receipt and review of the application, shall have the authority to request additional information from the applicant which it deems is necessary for a proper review by the board of adjustment and appeals. The request for variance shall be placed on the agenda of a regular or special meeting of the board of adjustment and appeals to occur no later than sixty (60) days from the date of submission of the application.

   B.   Upon receipt of said application, the board of adjustment and appeals shall set a public hearing. Written notice of said hearing shall be mailed at least ten (10) days prior to the hearing to all owners of land within three hundred fifty feet (350') of the property in question. A copy of the hearing notice and a list of the property owners and addresses to which the notice was sent shall be attested and made a part of the record of the proceeding.

   C.   Failure of a property owner to receive said notice shall not invalidate any such proceedings as set forth within this title provided a bona fide attempt has been made to comply with the notice requirements of this section.

   D.   The city and board of adjustment and appeals shall have the authority to request additional information from the applicant or to retain expert testimony with the consent and at the expense of the applicant. Failure by an applicant to supply all necessary supportive information may be grounds for denial of the request.

   E.   The applicant or representative thereof may appear before the board of adjustment and appeals to answer questions concerning the proposed variance.

   F.   The board of adjustment and appeals shall make findings of fact and shall decide whether to approve or deny a request for variance within sixty (60) days after the public hearing on said request.

   G.   A variance to this title shall not be granted unless approved by the votes of a majority of the members of the board of adjustment and appeals.

   H.   To appeal the decision of the board of adjustment and appeals, a written notice of appeal must be filed with the city within forty five (45) days of the decision of the board of adjustment and appeals. Appeals to the city council and appeals from the city council's decision shall be in accordance with the procedures for appeals from the board of adjustment and appeals set forth in section 10-7-6 of this title.

   I.   Whenever a variance has been considered and denied, a similar application and proposal for the variance affecting the same property shall not be considered again by the board of adjustment and appeals or council for at least one year from the date of its denial, except as follows:

      1.   If the board of adjustment and appeals determines that the circumstances surrounding the previous variance application have changed significantly.

      2.   If the board of adjustment and appeals decides to reconsider such matter by a vote of not less than a majority of its members.

   J.   If a request for a variance is approved, the applicant shall record the variance with the Clay County recorder, and furnish the city proof of such filing or shall provide the city the necessary recording fees for the city to record the variance with the Clay County recorder. No building permit will be granted until proof of recording is furnished to the city. If the variance is not recorded within sixty (60) days of its approval, it shall be deemed null and void unless an extension for recording is granted by the city manager or his/her designee. (Ord. 2011-06, 6-27-2011)

   A.   Board Of Adjustment And Appeals: The planning commission shall serve as the board of adjustment and appeals.

   B.   Review Criteria: Conditions governing considerations of variance requests:

      1.   In considering all requests for a variance, the board of adjustment and appeals shall make a finding of fact that the proposed action will not:

         a.   Impair an adequate supply of light and air to adjacent property.

         b.   Unreasonably increase the congestion in the public street.

         c.   Have the effect of allowing any district uses prohibited therein, permit a lesser degree of flood protection than the flood protection elevation for the particular area, or permit standards which are lower than those required by state law.

         d.   Increase the danger of fire or endanger the public safety.

         e.   Unreasonably diminish or impair established property values within the neighborhood, or in any way be contrary to the intent of this title.

         f.   Violate the intent and purpose of the comprehensive plan.

         g.   Violate any of the terms or conditions of subsection B2 of this section.

      2.   A variance from the terms of this title shall not be granted unless it can be demonstrated that:

         a.   Practical difficulties will result if the variance is denied due to the existence of special conditions and unique circumstances which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same district.

            (1)   Special conditions and unique circumstances may include exceptional topographic or water conditions or, in the case of an existing lot or parcel of record, narrowness, shallowness, insufficient area or shape of the property.

            (2)   Practical difficulties caused by the special conditions and unique circumstances may not be solely economic in nature, if a reasonable use of the property exists under the terms of this title.

            (3)   Special conditions and unique circumstances causing practical difficulties shall not be a result of lot size when the lot qualifies as a buildable parcel.

         b.   Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this title or deny the applicant the ability to put the property in question to a reasonable use.

         c.   The special conditions and unique circumstances causing the practical difficulties do not result from the actions of the applicant.

         d.   Granting the variance requested will not confer on the applicant a special privilege that is denied by this title to other lands, structures or buildings in the same district under the same conditions.

         e.   The request is not a result of nonconforming lands, structures or buildings in the same district.

         f.   The request is not a use variance.

         g.   The variance requested is the minimum variance necessary to accomplish the intended purpose of the applicant.

         h.   Granting the request would not alter the essential character of the neighborhood.

      3.   Should the board of adjustment and appeals find that the conditions outlined heretofore apply to the proposed lot or parcel, the board of adjustment and appeals may grant a variance from the strict application of this title so as to relieve such difficulties or hardships to the degree considered reasonable, provided such relief may be granted without impairing the intent of this title.

      4.   In approving a variance, the board of adjustment and appeals may set a date by which work must be commenced and a date by which the work must be substantially completed. If those guidelines are not met, the variance shall become null and void. If the time for completion is less than one year, an extension may be granted, in writing, by the zoning administrator of the city. If the time for completion is one year or over, the procedure in section 10-5-4 of this chapter must be followed for an extension.

      5.   The board of adjustment and appeals may impose conditions for the granting of variances. Conditions must be directly related to and must bear a rough proportionality to the impact created by the variance. (Ord. 2011-06, 6-27-2011)

Unless otherwise specified by the city, if within one year after granting a variance the work as allowed by the variance shall not have been substantially completed, then such a variance shall become null and void unless a petition for an extension of time in which to complete or utilize the use has been granted by the board of adjustment and appeals. Such extension shall be requested in writing and filed with the city at least thirty (30) days before the expiration of the original variance or appeal. The fee, if any, for filing of such petition shall be set by the city council by resolution. The request for extension shall state facts showing a good faith attempt to complete the use permitted in the variance. Such petition shall be presented to the board of adjustment and appeals for decision. (Ord. 2011-06, 6-27-2011)

If an applicant needs a variance as well as a conditional use for the same property, the city may put out one joint notice, and the board of adjustment and appeals and planning commission may hold a joint meeting at which they have a joint hearing on both matters. At the conclusion of the hearing, the board of adjustment and appeals should vote on the variance, and the planning commission shall vote separately on the conditional use permit. (Ord. 2011-06, 6-27-2011)