§ 153.404. Jurisdiction—Variances.

The Board of Zoning Appeals may, on appeal in a specific case, after public notice and hearing, vary the application of certain of the regulations established in this Zoning Code in harmony with their general purpose and intent. These variances shall be authorized only when the Board finds adequate evidence that they will meet the criteria set forth in Sections 153.474 and 153.476. The Board may enact sufficient and reasonable conditions and safeguards as it may deem necessary to assure the proper development of the variances consistent with its powers. The Board's jurisdiction shall be limited to the following instances, wherein the Board may authorize the issuance of a permit for:

A.

The location or erection, in any part of a Class U1 District, of a building which is arranged, in-tended or designed for a use enumerated in Section 153.240(A)(3);

B.

The extension of a building or use into a more restricted district, but not more than twenty-five feet beyond the boundary line of the district in which such use is authorized, where a use district boundary divides a lot in single ownership;

C.

The expansion of a structure or construction of a new structure on premises devoted to a nonconforming use, where the cost of such expansion during any ten-year period does not exceed sixty percent of the value at which the existing structure stands on the tax duplicate, or the value of the structure as determined by an appraisal, such appraisal to be obtained by the method described in Section 34.28, nor in any one-year period to an extent exceeding thirty percent of such value, and together with such conditions as the Board may deem appropriate to minimize the nonconforming character of the use;

D.

The extension of a nonconforming development to an extent in excess of the cost limitations of Section 153.397(B), together with such conditions as the Board may deem appropriate to minimize the nonconforming character of the development;

E.

The temporary erection or temporary placement of structures or the use of structures and premises in all districts, that do not conform to the regulations of such districts, for a period of not more than two years, where such structures are temporary only and uses are clearly incidental to and necessary for appropriate development. Such structures shall not be used nor be intended to be used for habitation and shall be approved by the Superintendent of Building Inspection and the Fire Chief before placement on the site.

F.

The location of a church in a Class U1, U2, UD, UHD, or ULB District, provided such use furnishes off-street parking based on the following criteria:

1.

The minimum requirements shall be one parking space for each five seats in the largest meeting room of the building, such largest meeting room including all space created by opening temporary partitions to consolidate space.

2.

Such parking space shall be provided either on the lot of such use, or under the provisions of subsection H of this section, or within a use district where off-street parking is a permitted primary use.

3.

The Board, when reviewing the plans for such parking space, shall be guided by the standards provided in the article on Development and Area District Requirements at Section 153.300 et seq. for the appropriate use district in which the parking is located.

4.

If an existing church is expanded, parking space required hereunder shall be based only on any increased seating capacity.

5.

A church, if moved to a new location or built on the site of a formerly existing similar use, or creating a new largest meeting room, shall comply with this subsection.

G.

The location of a rest home, nursing home, or convalescent home (not including rehabilitation homes or half-way homes) in a Class U1, U2, UD, UHD, ULB, or U3 District, provided that such use will not contain over ten patients or residents and provided that such use furnishes off-street parking based on the following criteria:

1.

The minimum requirement shall be two parking spaces for each five residents or patients in the facility, plus one parking space for every two full-time employees.

2.

Such parking space shall be provided either on the lot of such use, or under the provisions of subsection H of this section, or within a use district where off-street parking is a permitted primary use. The Board may also authorize parking on adjacent lots shared with other uses.

3.

The Board, when reviewing plans for such parking space, shall be guided by the standards provided in the article on Development and Area District Requirements at Sections 153.300 et seq. for the appropriate use district in which parking is located.

4.

If an existing nursing home, rest home, or similar institution is expanded, parking space required hereunder shall be based only on any increased capacity.

H.

The location of off-street parking facilities for motor vehicles in a Class U1, U2, UD, UHD or ULB District, where such parking is accessory to facilities of a church, hospital, or similar institutional use, nursing home, rest home, nonprofit lodge, or eleemosynary organization, subject to the following criteria:

1.

The lot used for off-street parking shall be within four hundred feet of the premises of operation or activity of the organization or institution requesting such parking.

2.

No charge shall be made for the use of such parking facilities except as a means to control their use and provide for their maintenance.

3.

The organization or institution requesting such parking facilities shall not be engaged in the dispensing of alcoholic beverages to members or guests.

4.

The Board, when reviewing plans for such parking area, shall be guided by the standards provided in Sections 153.300 et seq. for the appropriate use district in which the parking is located.

I.

Any use in any use district that is not specifically prohibited and that is in general keeping with, and appropriate to, the uses authorized in such district;

J.

Any public utility structure, building, or use in any district where not otherwise permitted where necessary for the public convenience and welfare;

K.

1.

The erection of a building or structure to a height in excess of that prescribed for the height district in which such building or structure is located, but not in excess of the height prescribed in the next less restrictive height district, where such variance is necessary for the appropriate development of the property;

2.

An accessory structure, beyond the height limitation of fifteen feet, but in no case shall the Board permit construction to exceed five feet in height beyond the fifteen-foot height limitation, except that no habitable space shall be permitted.

L.

The construction of a structure or building beyond the building line, but in no case under this subsection shall the Board permit construction to extend closer to the street line more than seventy-five percent of the distance between the building line and the street line;

M.

The use of property in a U4, U5, or U6 Use District for residential purposes, provided there is at least fifty percent residential development on the side of the street in the block in which the proposed use is to be located;

N.

The use of property in a U5 or U6 Use District for retail business purposes, provided there is at least fifty percent retail business development on the side of the street in the block in which the proposed use is to be located;

O.

The construction of a building or portion of a building between the side yard line and the lot line, but not to exceed the following limitations:

1.

Not to exceed six inches variance on the narrow side yard for the foundation wall only;

2.

Not to exceed twenty-four inches on the wide side yard of a lot if eight feet remains for a driveway after the variation is granted;

3.

Such side yard variances permitted in subsections (O)(1) or (2) of this section shall not be allowed on a lot on which any variation allowing a reduction in the rear or front yards is permitted;

4.

Chimneys not to exceed thirty inches into the required side yards.

P.

For a single-family residence only:

1.

The construction of or addition to a dwelling between the rear yard line and the lot line, shall not consume more than forty percent of the required rear yard area nor be closer than ten feet to any dwelling on an abutting property;

2.

No dwelling may be located closer than two feet to any side lot lines and no closer than ten feet to any dwelling on an abutting property; provided that the front, rear, and sides of said encroachment remain totally open, except that it may be roofed.

Q.

Where the Board is satisfied that the location, nature or uniqueness of the use makes a variance appropriate, fifty percent of the required parking area may remain unimproved and retained in landscaped area;

R.

The location of a helistop in any district where such use will not be detrimental to the safety or welfare of the surrounding neighborhood;

S.

The location of a two-family dwelling, rooming house, or over five roomers, fraternity, or sorority house, or an apartment house on a lot smaller than that prescribed in Section 153.305(B)(2), provided that not more than a ten percent reduction in either the area, building line width, or rear line width may be granted for any one lot, but not more than one such exception;

T.

The location of a residential day care center for seven to nine children in a Class U1 or U2 District, subject to the following criteria:

1.

Extra parking spaces shall be required only if the operator hires employees.

2.

Drop-off and pick-up areas shall be approved by the Traffic Engineer prior to Board of Zoning Appeals approval.

3.

Annual inspection and approval by the Building, Health, and Fire Departments.

4.

That only one day care center be permitted per City block or within one thousand feet of another day care center.

U.

The Board of Zoning Appeals may vary the underground wiring requirements where it finds undue hardship due to exceptional topographic or other physical conditions. It may vary the regulations so as to relieve such hardship, provided such relief may be granted without detriment to the public interest and without impairing the intent and purpose of this regulation or the desirable development of the neighborhood and community. In order to grant a variance the board shall determine:

1.

The lands are not conditionally zoned; if they are, no variance would be granted;

2.

That special conditions and circumstances exist which are peculiar to the land, structure, or building involved;

3.

That literal interpretation of the provisions of Sections 153.305(D)(4)(c) and 153.310(C) would deprive the appellant of rights commonly enjoyed by other properties in the same district:

4.

That the special conditions and circumstances did not result from the actions of the appellant;

5.

That granting the variance requested will not confer on the appellant any special privilege that is denied other developments in the same district.

V.

The location of accessory off-street parking for apartment houses on adjacent property in a more restrictive residential use district in areas where The Land Use and Development Guide Plan recommends mixed-residential use subject to the development conditions of Section 153.305.

W.

The location of accessory off-street parking for nonresidential use on more restrictive zoned land in areas of the City where such a policy is recommended by The Land Use and Development Guide Plan subject to the development conditions of Section 153.310.

X.

The location of a mausoleum in an existing cemetery. Penalty, see § 153.199.

(Prior code § 153.012; Ord. 479-1994; Ord. 859-1992; Ord. 739-1987; Ord. 219-1987; Ord. 104-1986; Ord. 508-1982; Ord. 407-1982; Ord. 955-1978; Ord. 322-1976)