For the purpose of this Code the Board of Zoning Adjustment shall be referred to in the Newark City Charter and elsewhere, and shall be referred to herein as the Board.

(Ord. 08-33. Passed 5-4-09; Ord. 17-32A. Passed 8-7-17.)

   The Board as constituted at the time of enactment of this Code shall continue in office. The Board shall consist of five members, each of whom is either the owner of real property or the owner or operator of a business within the City of Newark or a citizen of Newark appointed by the Mayor, with consent of Council, for terms of four years. Upon the vacancy of any of the five seats on the Board, the vacancy shall be filled in a like manner. Members of the Board shall be removed for cause, upon written charges being filed, by the Mayor and with the consent of Council.

(Ord. 08-33. Passed 5-4-09; Ord. 17-32A. Passed 8-7-17.)

   (a)   Organization and Meetings. The Board shall organize and elect a Chairman, Vice Chairman, and a Secretary from its membership. The Board shall then adopt rules for its own governance in accordance with this Code. Meetings shall be held, at minimum, once per month on a regularly scheduled basis with prior public notice of the meeting. At the time of enactment of this Code, the regularly scheduled meeting date is the fourth Thursday of each month at 5:30 p.m. in City Council Chambers, except for November and December's meeting which is held on the third Thursday. The Chairman, or in his absence the Vice Chairman, may administer oaths and the Board may compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Secretary shall keep minutes of the proceedings, indicating the vote of each member on each question. The Secretary shall keep records of the Board's examination and other official actions. All decisions of the Board shall be immediately filed in the Division of Code Administration and become public record. The official minutes of the proceedings shall be filed with the Division of Code Administration no later than at the time of the Board's next monthly meeting.

   (b)   Quorum. Three members of the Board shall constitute a quorum. The Board shall act by resolution; and the concurring vote of the majority of the members of the Board present. In no case shall less than three members of the Board be necessary to reverse any order, requirement, decision or determination from which there has been an appeal.

   (c)   Assistance. The Secretary of the Board may call upon the Planning Director, the Planning Commission, the employees of the City Engineering Department and the Division of Code Administration for assistance in the performance of duties of the Board.

(Ord. 08-33. Passed 5-4-09.)

   (a)   Appeal – When, How and by Whom. An appeal to the Board may be made by any person aggrieved or by any office, department, board, or bureau of the City affected by any decision of the Zoning Inspector. Such appeal shall be taken within sixty days after the decision, by filing with the Division of Code Administration a Notice of Appeal specifying the grounds thereof.

      (1)   Appeal form and content. The notice of appeal shall be of a standard form, which shall be readily available upon request from the Division of Code Administration. Included with the application shall be an accurate listing of the names and tax mailing addresses of all property owners located within 200 feet of any portion of the property, which is in the subject of the appeal. Each application shall be accompanied by a check, payable to the Treasurer of the City of Newark, or a cash payment, sufficient in amount to cover the cost of publishing, and mailing the notices of the hearing, but in no event shall it be less than seventy- five dollars ($75.00) for residential (1 & 2 family dwellings) or two hundred dollars ($200.00) for commercial or multi-family dwellings. The Zoning Inspector shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

      (2)   Zoning Inspector failure to act on application. When the Zoning Inspector fails to act on an application within the time limit described in Section 1232.02(c), the applicant may submit a written request to the Division of Code Administration, requesting to be included on the Board's agenda for the next available meeting. The applicant is not required to submit a notice of appeal, or pay any filing fees. Written notice by mail to property owners within 200 feet shall not be required.

      (3)   Zoning Inspector failure to act on requested inspection. When the Zoning Inspector fails to act on a requested inspection within the time limit described in Section 1232.04, the applicant may submit a written request to the Division of Code Administration, requesting to be included on the Board's agenda for the next available meeting. The applicant is not required to submit a notice of appeal, or pay any filing fees. Written notice by mail to property owners within 200 feet shall not be required.

   (b)   Appeal - Hearings.

      (1)   The Board shall fix a reasonable time for the public hearing of the application or appeal and shall give written notice by mail of the hearing to the parties of interest, including all property owners within 200 feet of any portion of the property in question. At the hearing, any party may appear in person or be represented by agent or attorney and shall be afforded an opportunity to speak.

      (2)   Applications shall be submitted to the Division of Code Administration at least twenty-one days prior to the regularly scheduled meeting date to be heard at that meeting. It is the purpose of this time limit to allow for mailed written notice to reach all parties in interest. Applications filed less than twenty-one days prior to the regularly scheduled meeting date shall be heard at the following meeting of the Board.

   (c)   Appeal - Stay of Proceedings. An appeal shall stay all proceedings in furtherance of the decision appealed from unless in the opinion of the Zoning Inspector, a stay would cause imminent peril to life or property. In such case, proceedings shall not be stayed unless applicant obtains a restraining order granted by the Court of Common Pleas.

   (d)   Appeal – Decision of the Board.

      (1)   The Board shall, except in those instances in which an appeal has been tabled at the request of the applicant, decide all applications and appeals within seventy-two hours after the date of the public hearing.

      (2)   A certified copy of the Board's decision shall be transmitted to the applicant or appellant, and to the Zoning Inspector. Such decision shall be binding upon the Zoning Inspector and observed by him, and he shall incorporate the terms and conditions of the same in the permit to the applicant or appellant, if a permit is authorized by the Board.

      (3)   A decision of the Board shall not become final until the expiration of five business days from the date of such decision, unless the Board shall find it is necessary for the preservation of property or personal rights for the decision to have immediate effect and the Board shall so certify on the record.

(Ord. 08-33. Passed 5-4-09; Ord. 23-22-A. Passed 9-5-23.)

   The Board shall have the powers granted in Sections 1234.06, 1234.07, 1234.08, 1234.09 and 1234.10 and their respective subsections.

(Ord. 08-33. Passed 5-4-09.)

   (a)   Interpretation of the Map. When there is a question concerning the exact location of district boundary lines or where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the Zoning Map, the Board shall interpret the map in such a way as to fulfill the intent and purpose of this Code.

   (b)   Interpretation of the Code. Where the Zoning Inspector is uncertain as to the meaning and intent of a provision of the Code, a request for interpretation of the provision may be made to the Board and a determination shall be made by the Board.

(Ord. 08-33. Passed 5-4-09.)

   (a)   Additional Uses. Uses, other than those specifically mentioned in this Code as permitted uses in each of the districts may be allowed therein, provided that, in the judgment of the Zoning Inspector, such other uses are of similar character to those listed and will have no adverse effect or influence or no more adverse effect or influence on adjacent properties or the neighborhood or the community than the permitted uses specifically allowed in the district. When the Zoning Inspector is uncertain as to the proper classification of a use not included within the provisions of this Code, he may ask the Board for an interpretation in accordance with Section 1234.06.

   (b)   Additional Prohibited Uses. Uses other than those specifically prohibited in this Code in any district shall be prohibited, provided that in the judgment of the Zoning Inspector, such other uses are similar in character to those specifically prohibited and will have similar or more adverse effect or influence on adjacent properties or the neighborhood or the community than the uses specifically prohibited in the district. (See Section 1240.03). When the Zoning Inspector is uncertain as to the proper classification of a use not included within the provisions of this Code, he may ask the Board for an interpretation in accordance with Section 1234.06.

   (c)   Conditional Uses and Special Exceptions.

      (1)   The Board shall have the power to hear and decide applications filed for conditional uses, special exceptions and for decisions on other questions upon which the Board is authorized to act.

      (2)   In considering an application for a conditional use or a special exception, the Board shall give due regard to the nature and condition of all adjacent uses and structures; and in authorizing a conditional use or special exception, the Board may impose such requirements and conditions for the particular conditional use or special exception as the Board may deem appropriate for the protection of adjacent properties and the public interest.

      (3)   Where a conditional use in an Industrial District the Board may require the installation, operation and maintenance of such devices or such methods of operation as may, in the opinion of the Board, be reasonably required to prevent or reduce fumes, gas, dust, smoke, odor, water, water-carried waste, fluids, noise, vibration, or similar objectionable features, and may impose such conditions regarding the extent of open spaces between such industries or uses and surrounding properties as will tend to prevent or reduce the harm or nuisance which might otherwise result from the proposed use of surrounding properties and neighborhoods.

   (d)   Conditional Use and Special Exception Approval – Time Limit. If after a conditional use or special exception approval is granted by the Board, the use or structure authorized shall not have started within twelve months of the date of the permit, the grant shall be void and of no force or effect. Thereafter, before such use can be established or construction on such structure undertaken, a new application for conditional permit shall be filed with the Board.

   (e)   Nonconforming Uses - Substitutions. The Board shall have the power to permit a nonconforming use existing at the time of enactment of the Code, to be replaced by another nonconforming use, if no structural alterations, except those required by law or resolution, are made; provided, the intensity of the substituted use is determined to be of the same, or less, intensity than the existing nonconforming use. In determining intensity of use the following factors are among those that shall be considered: traffic generated by the use; parking for the use; number of employees; amount of deliveries; signage; or exterior storage on premises.

   (f)   Temporary Uses. The Board may authorize the temporary use of a structure or premises in any District for a purpose or use that does not comply with the regulations prescribed elsewhere in this Code for the District in which it is located, provided that such use is of temporary nature and does not involve the erection of a substantial structure. A zoning certificate for such use shall be granted in the form of a temporary and revocable permit, for not more than a twelve-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.

(Ord. 08-33-A. Passed 5-4-09.)

   (b)   Variance – Conditions Prevailing. Where, by reason of the exceptional narrowness, shallowness or unusual shape of a specific piece of property existing on the effective date of this Code, or by reason of exceptional topographic conditions, or other extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjoining the piece of property in question, the literal enforcement of the requirements of this Code would involve practical difficulty or would cause unnecessary hardship the Board may grant a variance and attach such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purposes of the Code and in public interest. In authorizing a variance, with attached condition, the Board shall require such evidence, guarantee or bond as it may deem to be necessary, to enforce compliance with the conditions established.

   (c)   Variance – Findings of the Board. No variance of the provisions or requirements of this Code shall be authorized by the Board unless the Board finds, beyond reasonable doubt, that all the following facts and conditions exist:

      (1)   Unusual circumstances. There are circumstance or conditions applying to the property in question or to the intended use of the property, that do not apply generally to other properties or class of uses in the zoning district.

      (2)   Preservation of property rights. The variance is necessary to preserve for the applicant substantial property rights held by other properties in the same zoning district and in the same vicinity.

      (3)   Absence of detriment. That authorizing the variance will not be a substantial detriment to adjacent property, and will not materially impair the purposes of this Code or the public interest.

(Ord. 08-33-A. Passed 5-4-09; Ord. 10-27. Passed 11-15-10.)

   (a)   The requirements of notification contained in Section 1234.04(b) are not applicable to the appeals filed under this section.

   (b)   The Board shall have the power to hear and decide appeals, filed as hereinbefore provided, where it is alleged by the applicant that there is error in any order, requirement, decision, determination, grant or refusal by the Zoning Inspector or other administrative official in the enforcement and interpretation of the provisions of this Code, or an appeal in accordance with Section 1292.10.

   (c)   In exercising its power, the Board may, in conformity with the provisions of statue and of this Code, reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as the Board deems appropriate.

(Ord. 08-33-A. Passed 5-4-09.)

   The Board shall have the power to authorize, upon application in specific cases, filed as hereinafter provided, issuance of a zoning certificate for uses that are subject to the performance standards procedure under Chapter 1296, as follows:

   (a)   Application. An application for a zoning certificate for a use subject to performance standards shall be submitted in duplicate on a form prescribed by the Board, the applicant shall also submit in duplicate a plan of the proposed construction or development including a description of the proposed machinery, processes and products, and specifications for the mechanisms and techniques to be used in restricting the emission of dangerous and objectionable elements as set forth in Chapter 1296 in accordance with rules prescribed by the Board specifying the type of information required in such plans and specifications. The fee for such application shall include the cost of special reports that may be required to process the application.

   (b)   Report by Specialist. If in its opinion, the proposed use may cause the emission of dangerous or objectionable elements, the Board may refer the application to one or more specialists qualified to advise whether a proposed use will comply with the applicable performance standards specified in Chapter 1296 for investigation and report. Such consultant or consultants shall report as promptly as possible after receipt of such application and completion of examination or investigation. A copy of such report shall be promptly furnished to the applicant.

   (c)   Review by Board. Within thirty days after the Board has received the report, or within such further period as agreed to by the applicant, the Board shall determine whether the proposed use will comply with the applicable performance standards, and on such basis shall authorize or refuse to authorize issuance of a zoning certificate or require a modification of the proposed plan of construction specifications, proposed equipment, or operation. Any zoning certificate so authorized and issued shall be contingent upon, among other things, the following: that the applicant's buildings and installations when completed will comply with the applicable standards; and that the applicant will pay the fees for services of the specialist or specialists advising the Board as to whether or not the applicant's completed buildings and installation will comply with the applicable performance standards.

   (d)   Continued Enforcement. The Zoning Inspector shall investigate any reported violation of performance standards and, if there is reasonable grounds to constitute a violation. The Zoning Inspector shall notify the Board of the occurrence or existence of a probable violation of the performance standards. The Board shall investigate the alleged violation, and for such investigation may employ qualified experts as the Board deems necessary. The services of any qualified expert employed by the Board to advise in establishing a violation shall be paid for by the violator if a violation is established, otherwise the City shall pay the cost of such services.

(Ord. 08-33. Passed 5-4-09.)

   Any person or persons, jointly or severally aggrieved by any decision of the Board, may present to the Court of Common Pleas of Licking County a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the Court within ten days after the filing of the decision in the office of the Board. Any such appeal shall be heard and determined by the Court without a jury.

(Ord. 08-33. Passed 5-4-09.)