§ 98-13. Variances.

(a)

Generally. Requests for variances from requirements of the land development code shall generally be considered as to those provisions which regulate site development and the requirements applicable to existing development. No request for a variance to permit a use which is not allowed as a permitted use or by special exception within the specific zoning district shall be considered. In addition, request for variances to permit the nonconforming use of any land, or the continuance of any nonconforming use shall not be considered.

(b)

Application for variance. Application for variance shall be made on the appropriate form provided by the city for that purpose, and shall be accompanied by the appropriate review fee. Variances shall be considered as follows:

(1)

Applications for a variance shall be submitted no later than four weeks in advance of a regularly scheduled DRC meeting in order to be considered at that meeting.

(2)

Applications for a variance shall include a legal description of the property, sketch or survey of the property, proof of ownership, and authorization of the owner if represented by an agent or contract purchaser.

(3)

In addition, the applicant shall provide a written statement which explains the conditions and circumstances of the alleged hardship, the proposed action by the applicant should be the variance be granted, and the necessity of the action. The written statement shall clearly justify the granting of relief from requirements of the land development code, and satisfactorily address the review criteria in subsection (e) of this section.

(c)

Notification of public hearing. All variance requests, except subdivision or plat variances, shall be noticed as follows prior to the public hearings:

(1)

Adjoining owners. At least 14 days prior to the public hearing before the planning and zoning commission, the city shall send notice of the proposed variance to the owners of all adjoining properties located within 300 feet of the subject property. The city shall mail an additional notice, at the applicant's expense, to the owners of all adjacent properties located within 300 feet of the subject property if more than 60 days have passed between the planning and zoning commission hearing at which the proposed action was considered and the meeting of the board of adjustment at which the proposed action was considered. Such additional notice shall be sent by certified mail to those property owners owning property directly adjacent to the subject property.

The property owner or applicant shall conspicuously post the notice on the subject property so that the notice is visible from the right-of-way adjacent to the property. A minimum of one sign shall be posted facing each adjacent right-of-way to the subject property. Said notice shall be at least 18 inches × 24 inches in size and shall be elevated approximately six feet off of the ground as measured from the top of the sign to the ground. Such notice shall include the date, time and place of the public hearings before the planning and zoning commission and city council along with a clear and concise description of the proposed variance.

(2)

Public advertisement. Notice of public hearing shall be published in a newspaper of general circulation within the city at least 14 days prior to adoption. Notice shall also be posted in a conspicuous location at city hall, and may be posted at other public locations at the discretion of the city.

(d)

Procedure for public hearing. After review by the DRP reviewers as determined by the city manager or designee, the planning and zoning commission shall consider and make a recommendation on every variance request at a public hearing. A decision shall then be made by the board of adjustment whether or not to approve any variation from this land development code. Any variance shall specify in what manner such variation or modification is to be made, the conditions upon which it is made and the reason therefor.

(e)

Review criteria. When reviewing an application for a variance, the planning and zoning commission and the board of adjustment shall consider the following requirements and criteria:

(1)

No diminution in value of surrounding properties would be suffered.

(2)

Granting the permit would be of benefit to the public interest.

(3)

Denial of the permit would result in unnecessary hardship to the owner seeking it.

(4)

The use must not be contrary to the spirit of this land development code.

(5)

Financial disadvantage or inconvenience to the applicant shall not of themselves constitute conclusive evidence of unnecessary and undue hardship and be grounds to justify granting of a variance.

(6)

Physical hardships, such as disabilities of any applicant, may be considered grounds to justify granting of a variance at the discretion of the board of adjustment.

The criteria of this subsection (e) shall be used to determine the justification for granting of relief from requirements of the land development code. Each applicant for a variance request shall apply these criteria to the specific case. In the case of any request for a variance to enlarge or alter an existing nonconforming structure, the board of adjustment may only grant a variance if the enlargement or alteration to the nonconforming structure proposed by the applicant does not increase that portion of the structure which causes the entire structure to be nonconforming. For example, should a structure violate the front yard setback requirement established by this land development code, the board of adjustment may grant a variance to allow the construction of a back porch for the structure provided that all other requirements of this section and the land development code are met.

(f)

Conditions of approval.

(1)

Conditions and safeguards. In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards to ensure compliance with the requirements of this section and the land development code in general. Such conditions may include time limits for initiation of the variance, specific minimum or maximum limits to regular code requirements, or any other conditions reasonably related to the requirements and criteria of this section.

(2)

Expiration of variance approval. A variance that has not been utilized within one year shall expire.

(LDC 1997, ch. 4, § 1.15; Ord. No. 2002-09, § 5, 6-11-2002; Ord. No. 2005-19, § 5, 5-24-2005; Ord. No. 2006-33, § 5, 11-4-2006; Ord. No. 2008-35, § 5, 11-7-2008)