§ 27-216. Appeals and variances.

(a)

Purpose.

(1)

The board of zoning appeals may authorize, in specific cases, a variance from the specific terms of this article which will not be contrary to the public interest, and where, owing to special conditions, a literal enforcement of the provisions of this article will, in an individual case, result in unnecessary hardship, provided that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

(2)

Variances shall not be heard or granted for:

a.

Any use not permitted by this article in such district;

b.

Residential development that would result in an increase in density greater than that permitted in the applicable zoning district; or

c.

Changes or modifications to any definition contained in this Code.

(b)

Applicant. A variance request may be initiated by the unified government, property owner, or owner's agent.

(c)

Preapplication conference. A preapplication conference is recommended.

(d)

Submission requirements. The director of planning shall prepare applications specifying the information to be submitted in support of a variance application. The application shall include at least the following:

(1)

Legal description of the property.

(2)

A map of the site showing the location and dimensions of the requested variance.

(3)

A statement of reasons why the variance is being requested.

(4)

A statement of how the applicant meets the statutory requirements for the issuance of a variance.

(e)

Application and review procedures.

(1)

Determination of completeness. Applications shall be submitted to the director for a determination of completeness pursuant to section 27-198.

(2)

Neighborhood meeting. The applicant shall comply with the requirements for a neighborhood meeting pursuant to section 27-199.

(3)

Staff review. Following a determination of completeness, the staff shall review the application pursuant to section 27-200.

(4)

Notice and public hearing. Following completion of staff review and such neighborhood meetings as are required, the application shall be scheduled for a public hearing before the board of zoning appeals.

a.

Notice shall be provided pursuant to section 27-203.

b.

The board of zoning appeals shall make findings based on the criteria listed in subsection (f) of this section in making a determination.

(f)

Review criteria. A request for variance may be granted upon a finding by the board of zoning appeals that all of the following conditions have been met:

(1)

The variance arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district, and which is not created by an action of the property owner, a previous property owner, or the applicant.

(2)

The granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.

(3)

The strict application of the provisions of the zoning ordinance for which variance is requested will constitute unnecessary hardship upon the property owner represented in the application.

(4)

The variance desired will not adversely affect the health, safety, morals, order, convenience, prosperity, or general welfare.

(5)

The granting of the variance desired will not be opposed to the general spirit and intent of this article.

(g)

Action.

(1)

Following the public hearing, the board of zoning appeals may approve, conditionally approve, or deny the application for variance.

(2)

If the board of zoning appeals conditionally approves a variance, the conditions imposed shall be designed so as to reduce or minimize any potentially injurious effects of such variance upon the other properties in the neighborhood, and to carry out the general purpose and intent of these regulations.

(3)

All variance approvals shall include:

a.

A requirement that construction commence within six months and be completed by a time identified by the board of zoning appeals; and

b.

A requirement that the project conform to the plans approved as part of the variance permit.

(h)

Appeal. Any person, official, or governmental agency aggrieved by any order or determination of the board of zoning appeals may bring an action in the district court to determine the reasonableness of such order or determination. Such petition must be presented to the court within 30 days after the filing of the decision in the office of the board.

(i)

Fees. Any person filing an appeal pursuant to this section to the board of zoning appeals shall, at the time application is made, pay the appropriate fee as set by the county administrator in the fee schedule set forth as an appendix to this Code.

(Code 1988, § 27-281; Ord. No. O-27-05, § 1, 3-24-2005)