§ 28-238. Variances.
(a)
Where the literal enforcement of the provisions of this chapter would cause practical difficulty or unnecessary hardship, the zoning board of appeals shall have the power to grant a dimensional, supplemental, and/or use variance. For the purpose of this section, a variance means a modification of the strict requirements of this chapter. The board can grant a variance from the following:
(1)
Dimensional requirements (e.g. yard, height, lot area).
(2)
Supplemental requirements (e.g. parking, landscaping, signs).
(3)
Use requirements (e.g. residential uses in non-residential districts).
(b)
The board shall not grant a variance for the expansion of a use otherwise prohibited (except for as set forth in subsection (a)(3) above) and shall not grant a variance because of the presence of nonconformities in the zoning district.
(c)
In authorizing a variance with conditions, the board shall require such evidence and bond as it may deem necessary to ensure that the conditions are being and will be complied with. No variance in the provisions or requirements of this chapter shall be authorized by the board unless the board finds, by a preponderance of the evidence that all of the following facts and conditions exist:
(1)
There are exceptional or extraordinary conditions applying to the property that do not apply to other properties or classes of uses in the same zoning district.
(2)
The exceptional or extraordinary conditions do not result from the actions of any person with a current interest in the property.
(3)
Strict compliance with this chapter would unreasonably prevent the applicant from using the property for a permitted purpose or would create practical difficulties in conforming to the requirements of this chapter.
(4)
The authorizing of such variance will not be of substantial detriment to adjacent property, alter the essential character of the area, and will not impair the purposes of this chapter or the public interest.
(5)
The variance is the minimum variance possible for reasonable use of the property.
(6)
The variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion in public streets or increase the danger of fire or endanger the public safety or substantially diminish property values within the area.
(7)
Such variance shall in no manner or guise be construed to allow a change of use but shall allow only a variation or modification from the provisions of this chapter.
(d)
standards: the zoning board of appeals may grant a use variance only upon finding that an unnecessary hardship exists. A use variance is a variance that permits a use that is otherwise not provided for in a zoning district. A finding of an unnecessary hardship shall require demonstration by the applicant of the following:
(1)
The property cannot be reasonably used for any purpose permitted in the zoning district. There must be financial proof of the applicant's inability to realize any reasonable return; speculation or a qualitative assessment is inadequate;
(2)
The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district. The applicant must demonstrate that there are certain features that make it impossible to earn a reasonable return without some adjustment. In those situations where others share the difficulty, the zoning board of appeals may find that relief should be accomplished by an amendment to the zoning ordinance, not a variance;
(3)
The problem and resulting need for the variance has not been self-created by the applicant;
(4)
The variance will not alter the essential character of the area. In determining whether this criteria has been met, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area shall be considered.
(Code 1977, § 5.282; Ord. No. 2011.15, § 6, 8-16-11; Ord. No. 2014-9, § 2, 4-8-14; Ord. No. 2016-29, § 3, 11-15-16; Ord. No. 2017-06, § 3, 5-2-17)