The City Council shall consider variances to the terms of this title which will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this title will result in undue hardship upon a landowner and under such conditions that the spirit of this title shall be observed and substantial justice done. A variance shall not be considered a right or special privilege, but may be granted to an applicant only upon showing of undue hardship because of the characteristics of the site. In acting upon a variance request, the City Council shall make full investigation and shall only grant a variance upon finding that the following are true:

   A.   That the granting of the variance will not be in conflict with the spirit and intent of the comprehensive plan for the City, and will not affect a change in zoning.

   B.   That there are exceptional or extraordinary circumstances or conditions, applicable to the property involved, or the intended use thereof, which do not apply generally to the property or class of use in the district, so that a denial of the relief sought will result in:

      1.   Undue loss in value of the property.

      2.   Inability to preserve the property rights of the owner.

      3.   The prevention of reasonable enjoyment of any property right of the owner.

   C.   The granting of such relief will not be materially detrimental to the public health, safety or welfare, or injurious to the property or improvements of other property owners or the quiet enjoyment of such property improvements.

   D.   That the reason for a variance was not caused by the owners, or previous owner's actions.

   E.   No nonconforming use of neighboring lands, structures or buildings in the same district and no permitted or nonconforming use of lands, structures or buildings in other districts shall be considered grounds for issuance of a variance.

(Ord. 1540, 2024: Ord. 1460, 2019)

   A.   In requesting any modification to the provisions of this title, a landowner, developer or authorized designee shall make written request to the City Clerk.

   B.   Such request, together with such related data and maps as necessary to fully illustrate the relief sought, shall be referred by the City Engineer or City Clerk in writing to the Planning and Zoning Commission.

   C.   The planning and zoning commission after conducting a public hearing, shall make a recommendation to the city council at its next regular meeting or within sixty (60) days. If no recommendation is made within such time, the matter shall be forwarded to and considered by the city council as if there were an unfavorable recommendation. The recommendation of the planning and zoning commission shall specify:

      1.   The regulations and standards used in evaluating the application;

      2.   The reason for approval or denial;

      3.   The actions, if any, that the applicant could take to obtain the variance.

   D.   The city council, after receiving the recommendation of the planning and zoning commission, shall hold its own public hearing and shall act upon the matter within sixty (60) days.

   E.   Approval of such modifications shall require a majority vote of the city council.

(Ord. 1540, 2024: Ord. 1460, 2019)

In granting variances and/or modifications from the regulations of this title, the City Council may require such conditions as will, in its judgment, secure substantially the objective of the standards or requirements so varied or modified.

(Ord. 1540, 2024: Ord. 1460, 2019)

   A.   A decision of the Planning and Zoning Commission on a variance may be appealed to the City Council within fifteen (15) days of the decision by the commission. Any person including, but not limited to, the City Clerk or Zoning Commissioner may file an appeal. When a notice of appeal of a decision by the commission on a variance has been timely filed, the transcribed recording of the hearing before the commission and all documents, including the application filed or entered into evidence before the commission shall constitute the record on appeal. The record shall be prepared and provided to the Council. When the Council has received the record, a notice of the time, date and place of hearing shall be sent to the appellant, City staff and other persons who testified at or submitted documents into the record at the hearing before the commission. The appellant shall be required to pay a fee in addition to the fee for filing the appeal which is set by resolution of the Council.

   B.   No new evidence, either written or by way of verbal testimony shall be presented or considered at the appeal hearing. The appellant shall have the burden of proof as to why the decision appealed from is in error based upon the record transmitted to the Council.

   C.   The appellant shall present its case first. Following the appellant, any person supporting the appeal who participated in the hearing before the commission shall be permitted to testify. The City staff shall then present its case on behalf of the City following which any person who opposes the appeal may testify. The appellant may then present any rebuttal argument following which the appeal hearing shall be concluded.

   D.   The Council, in its discretion, may permit persons with standing to testify at the hearing the opportunity to submit a brief in support of their position.

   E.   The Council may set reasonable limits on the time for testimony or argument provided each participant in the hearing.

   F.   The Council may ask questions of any participant in the hearing at any time.

   G.   A verbatim record of the hearing on the appeal shall be made and preserved as part of the record on the appeal.

   H.   The Council shall render a written decision on the appeal within twenty (20) days of the completion of the appeal and mail a copy to the appellant and each person who participated in the appeal hearing by testifying, presenting argument or who submitted a brief. The Council may uphold, reverse, or remand the matter appealed to the commission for further proceedings.

   I.   Any person, firm or company may appeal the decision of the Council to the District Court. (Ord. 1460, 2019)