§ 40-793. Limitation of powers and standards for board action.

The actions and decisions of the board of zoning adjustments shall be governed by the following standards and restrictions:

(1)

Limitations.

a.

In exercising the above-mentioned powers, the board may affirm or reverse wholly or partly or may modify the decision or determination appealed from and may make such other order, requirement, decision or determination as said board may deem proper and within its authority. However, the board shall not render any judgment or make any decision or determination which would constitute a zoning change.

b.

Whenever an appeal or application has been finally acted upon by the board, then the board shall not consider any further appeal or application requesting the same or similar relief involving the same property within two (2) calendar years from the date of the board's final decision on said appeal or application.

c.

If after the judgment granting a variance, exception or other relief prayed for, the operation authorized thereunder is not commenced within two (2) years of the effective date of the board's decision, or if the operation is commenced by the issuance of a permit and the work is discontinued for a sufficient period that the permit expires or is allowed to lapse and is not resubmitted for approval within two (2) years of the effective date of the board's decision, said judgment or decision shall expire, prescribe, lapse and/or be deemed to be abandoned by appellant or applicant; and, no permit shall be issued in reliance of such judgment or decision unless the matter is resubmitted to the board for consideration in the same manner as an original appeal or application. The filing of the decision in the office of the board shall be the effective date of the judgment.

d.

In considering a variance, exception or other relief requested in connection with any property, the board shall only consider such requests based upon the zoning classification of said property at the time the application is filed.

(2)

Standards. The purpose of the "variance" provisions of this section generally permit an applicant to apply for relief from the requirements of the letter of the ordinance when unnecessary hardship or practical difficulty exists, or when there is an exceptional or unusual physical condition of a lot, which condition is not generally prevalent in the neighborhood and which condition would prevent a reasonable or sensible arrangement of building on the lot.

The purpose of the "exception" provisions of this section, whenever an exception requires the approval of the board, generally permit the applicant to apply for use of land for purposes which may be essentially desirable, necessary or convenient to the community, its citizenry or a substantial segment thereof but which require special consideration of location and site plan because of an inherent tendency to create traffic congestion, noise, density of persons assembling, or which may cause an excessive strain on water resources or sewerage disposal facilities, or drainage, or which may cause a depreciation or diminution of value of the immediate surrounding property, or may otherwise adversely affect safety or welfare of the immediate surrounding area.

a.

In the consideration of all appeals and all proposed variances and/or exceptions requiring board approval, under the terms of this ordinance, the board shall not grant approval if it makes a finding, based upon the evidence presented to it, as indicated in the record and the transcript of the hearing, that any of the following criteria exist:

1.

The approval, if granted, would cause diminution or depreciation of property values of any surrounding property or would alter the essential character of the locality.

2.

The approval, if granted, would tend to degrade or retard the prosperity and general welfare of the neighborhood and community.

3.

The approval, if granted, would be detrimental to the public welfare or seriously affect or be injurious to other property or improvements in the neighborhood in which the property is located, in that it will not: impair an adequate supply of light and air; or increase substantially the congestions in the public streets, create a traffic hazard, or permit inadequate parking; or increase the danger of fire; or substantially affect or overburden existing drainage or sewerage systems; or otherwise endanger the public safety; or cause serious annoyance or injury to occupants or adjoining premises by reason of emission of odors, fumes, gases, dust, smoke, noise or vibration, light or glare, or other nuisances.

b.

Additionally, the board shall not grant approval of any variance unless it makes a further finding, as indicated in the record or the transcript of the hearing, that each case shall indicate the following:

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; and the special conditions and circumstances do not result from the intentional actions of the applicant or any other person who may have or had interest in the property; and the strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner as distinguished from mere inconvenience; or

2.

Literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance; and granting the variance requested will generally not confer on the applicant any special privilege which is denied by this ordinance to other lands, structures, or buildings in the same district or similarly situated; and the purpose of the variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party.

c.

[ Reserved. ]

(Ord. No. 20783, § 3(XXII(3)), 9-22-99; Ord. No. 21734, § 22, 12-11-02; Ord. No. 22670, § 15, 1-11-06; Ord. No. 23201, § 3, 12-12-07; Ord. No. 23776, § 3, 3-24-10; Ord. No. 24240, § XI, 3-28-12)