§ 23-244. Appeals and variances.

a. Upon appeal, the board of appeals may reverse, affirm or modify, wholly or partly, any order, requirement, decision or determination made by the administrative official provided that the board has first determined that the administrative official's application of these zoning regulations is not reasonable. In conformity with the provisions of said zoning regulations, the board of appeals may make any necessary order, requirement, decision or determination, and to that end shall have all the powers of the administrative official from whom the appeal is taken.

b. Upon appeal, the board of appeals may reverse, affirm or affirm with conditions a decision of the planning board to deny an application for special exception use provided that the board has first determined that the planning board's denial of said application is not reasonable under these zoning regulations.

c. The concurring vote of at least three (3) members of the board of appeals shall be necessary to reverse any order, requirement, decision or determination of the administrative official or planning board or to decide in favor of the applicant on any matter upon which the board of appeals is required to pass under this chapter.

Sec. 23-244.1 Appeals. An appeal of a decision made pursuant to these land development regulations shall follow the procedures provided by this section.

a. Petition for appeal. Any person appealing a decision shall file a petition with the administrative official on forms provided for that purpose within thirty (30) days of the decision being appealed. The petition shall set forth, at minimum, the nature, circumstances and basis of the appeal, and contain any materials relevant to the appeal, along with the fees as set forth on Table 23-242

The administrative official shall schedule a hearing on the petition at the next available meeting of the board authorized to hear the appeal, based upon the review and public notice schedule established by that board.

Boards authorized to hear appeals:

1. Appeal of decisions of the administrative official or the planning board shall be heard by the board of appeals.

2. Appeal of decisions of the historic district regulatory board shall be heard by the city commission.

b. Stop work. During the period between the submission of the petition and the appeal hearing the administrative official may issue a stop work order on any permits related to the appeal if such permits may be affected by the appeal. Costs, lost time or other expenses incurred by the applicant stemming from such a stop work order shall be the responsibility of the applicant.

c. Public notice. The administrative official shall give public notice for a public hearing as per section 23.241.2.

d. Appeals hearing. The board authorized to hear the appeal shall hold a public hearing on the appeal. Following the public hearing, the board shall rule on the appeal and shall issue a written order setting forth the findings of fact and the conclusions of law and the resulting decision.

The board hearing the appeal may reverse, affirm or modify, wholly or partly, any order, requirement, decision or determination made under these regulations, provided that the board has first determined that the decision was not based upon a reasonable application of these zoning regulations. In conformity with the provisions of said zoning regulations, the board may make any necessary order, requirement, decision or determination, and to that end shall have all the powers of the board or official from whom the appeal was taken.

The concurring vote of at least four (4) members of the board hearing an appeal shall be necessary to reverse any order, requirement, decision, or determination or to decide in favor of the applicant on any matter appealed under this chapter.

e. Appeal of a decision by the board of appeals or city commission shall be filed with the circuit court within thirty (30) days of the decision.

(Ord. No. 2008-45, § 4, 12-16-08)

Sec. 23-244.2 Variance. A variance is permission granted by the board of appeals to depart from a dimensional requirement of these land development regulations. Variances are allowed to relieve a property owner, who, because of property characteristics beyond his control, is unable to meet a dimensional requirement of these land development regulations. Waivers granted under various sections of these land development regulations are exempt from the requirements of this section.

a. Eligibility. An application for a variance may be submitted to the administrative official by a property owner or his designated agent (by power of attorney) if all of the following criteria are met:

1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. Literal interpretation of the provisions of these regulations would deprive the applicant of a reasonable use of his property, cause him unnecessary hardship, or deprive him of other rights commonly enjoyed by other property owners in the same zoning district;

4. The granting of the variance would not confer on the applicant any special privileges denied to other property owners in the same zoning district;

5. The grant of the request will be harmonious with the general intent and purpose of these regulations, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare;

6. The application is for a dimensional variance and would not authorize a use otherwise prohibited by these land development regulations;

7. The variance is the minimum variance that will allow reasonable use of the property;

8. The application does not meet all of the criteria above, but environmentally sensitive areas or trees as defined in section 23-215.1 will be saved by the granting of the variance.

b. Application. An eligible applicant may file a request for variance on forms provided by the administrative official. Such application shall be accompanied by all of the following:

1. The application fee set forth in section 23-242

2. A letter stating what dimensional variance is being requested and specifically identifying the characteristics of the property that necessitates the granting of a variance from the requirements of these land development regulations;

3. Reimbursement for costs of public notice;

4. Other information as required by the administrative official.

c. Public notice. Public notice shall be given as required in section 23-241, and the cost of such notice shall be paid by the applicant prior to board of appeals action on the application.

d. Review and action. The board of appeals shall hold a public hearing on the application. If the eligibility criteria in paragraph (a) are satisfied, the board may grant the variance as requested or a modification thereof if more appropriate. If the application is for a variance of a flood requirement, the variance granted shall comply with drainage requirements of section 23-308

e. Conditions and safeguards. In granting any variance, the board may prescribe appropriate conditions in conformity with zoning regulations. Violations of such conditions shall be deemed a violation of these regulations and shall be grounds for revocation of the variance. Unless otherwise specified by the board, variance approvals shall be in effect throughout the site plan review process and shall expire when and if the corresponding site plan expires. If there is no corresponding site plan, the time limit for variance shall expire twelve (12) months after the effective date of such action unless a building permit has been issued within the twelve-month period and work is active or the property for which the variance is granted is within a subdivision under active development. For the purposes of this section, "active" shall mean that work is continuing without cessation for a period of six (6) months or longer.

f. Limitations on power to grant variances.

1. Under no circumstances shall the board of appeals grant a variance to permit a use not permitted under the terms of the land development regulations in the zoning district involved, or any use expressly or by implication prohibited by the terms of these regulations in the said zoning district.

2. No nonconforming use of neighboring lands, structures, or buildings in the same zoning district, and no permitted use of lands, structures or buildings in any other district shall be considered grounds for the granting of a variance.

g. Recording of dimensional variance. All approved dimensional variances, including any attached conditions or restrictions, shall be recorded with the clerk of the circuit court at the applicant's expense. The original record of the dimensional variance shall be filed by the city clerk in the official records of the city. In the event that the variance expires or is revoked in accordance with paragraph (e), a notice of variance revocation shall be recorded with the clerk of the circuit court and the city clerk.

(Ord. No. 2008-04, § 4, 2-19-08; Ord. No. 2016-01, § 5, 01-19-16)