Sec. 656.132. - Zoning variances.

(a) A proposal for a zoning variance may be initiated only upon an application for zoning variance filed with the Department by the owner or his authorized agent. An application for a zoning variance under the Zoning Code shall be in writing and in the form prescribed by the Commission. Information required on the application may include, for example, the name and address of the owner and the agent, the property address and location, a legal description, real estate assessment number(s), and a list of the property owners within 350 feet. Other information may include the current zoning of the property, identification of any previous zoning application for this property sought within the preceding five years, the variance being sought, the conditions which are peculiar to the property which are not typical of the zoning district, facts indicating unnecessary and undue hardship on the real property, and facts indicating that the variance would not be detrimental to the public welfare or nullify the intent of the zoning regulations. An application shall be accompanied by a site plan drawn to an appropriate scale showing the property as it is intended to be developed or modified pursuant to the application for variance. The site plan must show the items required under Section 656.131 (a). Additional items may be required, to the extent applicable, as required by any site review guidelines which may be promulgated by the Department from time to time. The site plan, as approved, shall be binding upon the variance, if granted. Upon receipt of the application, the Zoning Administrator shall determine whether the application is complete within five working days. If it is determined that the application is not complete, written notice shall be provided to the applicant specifying the deficiencies. The Zoning Administrator shall take no further action on the application until the deficiencies are remedied. When the application is determined to be complete, all fees must be paid as specified in Section 656.147 . (b) The Department shall be responsible for making an advisory recommendation to the Commission with respect to each application for a zoning variance. This advisory recommendation shall include all available information concerning previous zoning applications for the subject property within the preceding five years, according to the zoning application. The Commission shall be responsible for reviewing and holding a public hearing with respect to each application for a zoning variance from the Zoning Code. Orders granting or denying the variances shall be issued by the Commission and signed by the Chairman and the Secretary thereof. The Commission is authorized to prescribe procedural and administrative rules it deems necessary or appropriate to administer its duties, including the manner in which applications will be filed, the method by which hearings will be held and whether rehearings from its decisions will be allowed and, if allowed, the method by which the rehearings will be held. (c) With respect to action upon applications for zoning variance: (1) The Commission must first determine whether the need for the variance arises out of the physical surroundings, shape, topographic condition or other physical or environmental conditions that are limited to the specific property involved. If so, the Commission shall make the required findings based on the granting of the variance for that property alone. If, however, the condition is common to numerous sites, so that requests for similar variances are likely to be received, the Commission shall make the required findings based on the cumulative effect of the granting of the variance to all who may apply. The Commission shall not grant the variance unless it makes a positive finding, based upon substantial competent evidence, on each of the following criteria: (i) The proposed request is consistent with the definition of a variance; (ii) There are practical or economic difficulties in carrying out the strict letter of the regulation; (iii) The request is not based exclusively upon a desire to reduce the cost of developing the site, but would accomplish some result which is in the public interest, such as, for example, furthering the preservation of natural resources by saving a tree or trees; (iv) The proposed variance will not substantially diminish property values in, nor alter the essential character of, the area surrounding the sites and will not substantially interfere with or injure the rights of others whose property would be affected by approval of the variance; (v) The proposed variance will not be detrimental to the public health, safety or welfare, result in additional public expense, the creation of nuisances, or conflict with any other applicable law; and (vi) The effect of the proposed variance is in harmony with the spirit and intent of the Zoning Code. (2) Unless a longer time is mutually agreed upon by the applicant and the Commission in the particular case, a public hearing shall be held by the Commission to consider an application for zoning variance within not more than 63 days from the date the application is determined to be complete by the Department. Notice of the public hearing shall be made as provided in Section 656.137 and the applicant(s) and all interested persons shall be heard in person or by agent or attorney. (3) The violation of the terms of an order granting a zoning variance, including conditions and safeguards which may be made a part thereof, shall be deemed a violation of the Zoning Code and punishable as provided in the Zoning Code. (d) The Commission shall not act upon a request for a variance from the provisions of the Zoning Code affecting lands lying within an airport environ or height zone until the Commission has received an advisory opinion from the Airport Zoning Advisory Committee established pursuant to Section 656.1028. (e) For purposes of this Section, for zoning variances for properties located in the Downtown Overlay Zone, as defined in Section 656.361.2 , all references to "Zoning Administrator" shall mean a designated staff member of the Downtown Investment Authority, all references to "Commission" shall mean the Downtown Development Review Board. (Ord. 91-59-148, § 1; Ord. 91-761-410, § 1; Ord. 98-678-E, § 3; Ord. 2007-564-E, § 7; Ord. No. 2010-901-E, § 1; Ord. 2012-364-E, § 10)