(a) A variance is the relief from strict application of any term or provision of this article [this ordinance] when such strict application would cause an undue hardship. The hardship must be due to the nature of the land or tract of land, and cannot be solely economic in nature. Under no circumstances can a variance be issued to allow any use other than those set forth in the zoning district in question.
(b) The board of adjustment may authorize a variance from these regulations when, in its opinion, undue hardship will result from requiring strict compliance. In granting a variance, the board shall prescribe only conditions that it deems necessary for or desirable to the public interest. In making the findings hereinbelow required, the board shall take into account the following:
(1) The nature of the proposed use of the land involved;
(2) Any existing uses of land in the vicinity; and
(3) The probable effect such variance will have upon traffic conditions and upon the public health, safety, convenience and welfare of the community.
(c) No variance shall be granted without first having given public notice and having held a public hearing on the variance request in accordance herewith and unless the board of adjustment makes specific findings as follows:
(1) That there are special circumstances or conditions affecting the property involved such that the strict application of the provisions of this article [this ordinance] would (i) deprive the applicant of the reasonable use of the property; and (ii) create an unnecessary hardship in the development of the property;
(2) That such circumstances or conditions are (i) not self-imposed; (ii) not based solely on economic gain or loss; and (iii) do not generally affect most properties in the vicinity of the property;
(3) The variance is necessary for the preservation and enjoyment of a substantial property right of the applicant;
(4) The variance if granted will not:
(a) Adversely affect the public health, safety or welfare;
(b) Be contrary to the public interest; and
(c) Be injurious to or adversely affect the orderly use of other property within the area.
(5) The property involved is otherwise in compliance with all other applicable city ordinances, rules, and regulations; and
(6) The granting of the variance will be in harmony with the spirit and purpose of this article [this ordinance].
(d) In making the finding required in subsection (c)(5), above, the board may rely solely on a representation by the city administrator. If the city administrator’s representation is that the property is not in compliance with any city ordinance, it shall specify such noncompliance (the “noncompliance”). In the event that the board can make the findings required to grant a variance but for the noncompliance, it may grant a variance to the applicant conditioned upon the property coming into compliance within 90 days of such conditional grant, or within such longer period as may be specified by the board of adjustment. The applicant shall take no action based upon such variance until the expiration of such period. If the city administrator does not determine that the noncompliance has been cured within such period the variance shall expire automatically.
(e) The applicant bears the burden of proof in establishing the facts justifying a variance.
(f) A building permit shall be applied for (if required) and construction initiated within one year of the issuance of a variance. If this condition is not met, the variance shall expire automatically unless extended by the BA. No development right (if any) shall vest in an expired variance.
Procedures.
(a)
Application and Fee.
An application for a variance by the board of adjustment shall be made in writing using forms prescribed by the BA, and shall be accompanied by an application fee (as adopted by the city from time to time and maintained on file), a site plan, and additional information as may be requested in order to properly review the application. This information may include, but is not limited to, plat plans, site building plans, photographs, topographic contour maps, and other similar documents.
(b)
Review and Report by the City.
The mayor or the mayor’s designee shall visit the site where the proposed variance will apply and the surrounding area, and shall report his or her findings to the BA.
(c)
Notice and Public Hearing.
The board of adjustment shall hold a public hearing for consideration of the variance request no later than 45 days after the date the application for action, or an appeal, is filed. Notice of the public hearing shall be provided to all property owners within 200 feet of the affected property at least 10 days prior to the public hearing, and also published in the official local newspaper at least 10 days prior to the public hearing.
(d)
Action by the BA.
The BA shall not grant a variance unless it finds, based upon compelling evidence, that each of the conditions in subsection
(f) above [section
21.06] has been established. The BA may impose conditions, limitations, and safeguards as it deems appropriate upon the granting of any variance. Violation of any such condition, limitation, or safeguard shall constitute a violation of this article [this ordinance].
See
ARTICLE 21: Board of Adjustment; Variances and Appeals for more information on the Board of Adjustment.
