Chapter 1111: Appeals and Variances

1111.01   Intent

The Board of Zoning Appeals shall hear any questions or disputes involving the interpretation of provisions of this Planning and Zoning Code, which shall be final, unless the matter is referred to the Council as set forth in this Chapter 1111. The Board of Zoning Appeals shall determine whether or not a variance from the strict letter of the Planning and Zoning Code should be granted. The Board of Zoning Appeals shall determine whether decisions of administrative officers, boards or commissions should be affirmed, reversed or modified on appeal.

  1. (a) When reviewing a decision of the Planning and Zoning Commission where it has acted to modify any part of the Planning and Zoning Code, as applied to any proposed development, the Board of Zoning Appeals shall be guided by the review standards set out in Sections 1111.07, 1111.08 and 1111.09 of this Chapter 1111, to the extent applicable.

  2. (b) If the standards set out in subsection 1111.01(a) are not applicable, then the Board of Zoning Appeals shall follow the review standards set out in the following subsections:

    1. (1) When reviewing other decisions of the Planning and Zoning Commission, or decisions of the Architectural Board of Review, or any administrative officer, the Board of Zoning Appeals shall first determine if (a) the decision was based on a correct interpretation of the Ordinances and Regulations of the Municipality; and (b) the decision was not unreasonable or an abuse of discretion, where discretion is permitted by the Ordinance or Regulation that is the basis for the decision being reviewed.

    2. (2) If the decision was based on an incorrect interpretation, or was unlawful, unreasonable or an abuse of discretion, as the case may be, the Board of Zoning Appeals may reverse, modify or remand the matter to the administrative officer, board or commission that rendered such decision. Otherwise the Board of Zoning Appeals shall affirm such decision.
      (Ord. 2022-10. Passed 4-11-22.)

1111.02   Jurisdiction

The Board of Zoning Appeals shall adopt such rules and regulations, provided they are not in conflict with this Planning and Zoning Code or other ordinances of the Municipality, as may be necessary to carry into effect the powers and jurisdiction conferred upon it as follows:

  1. (a) To hear appeals of final decisions made by the Administrator, or by any administrative officer, board or commission of the Municipality , on matters relating to the Planning and Zoning Code, or when directed by other provisions contained in the Codified Ordinances of the Municipality , for relief from any order, requirement, decision or determination, including the grant or refusal to grant a permit, or the revocation of a permit contemplated by this Planning and Zoning Code; which decision shall be final unless the matter is referred to the Council pursuant to this Chapter 1111 of the Planning and Zoning Code;

  2. (b) To hear and determine applications for variances from the terms provided in the Planning and Zoning Code subject to the standards provided in the Planning and Zoning Code;

  3. (c) To hear and determine all matters specifically referred to the Board of Zoning Appeals for determination, such as a determination of district boundary lines or the interpretation of the Planning and Zoning Code, when the matter is referred to the Board of Zoning Appeals in the Planning and Zoning Code or other provisions of the Codified Ordinances.
    (Ord. 2019-39. Passed 8-13-19.)

1111.03   Application for appeals or variances

An appeal shall be considered by the Board of Zoning Appeals only after formal action has been taken by the Administrator or other officers, or is taken at a public meeting by a board or commission with regard to an application for a building permit, zoning certificate, issuance of a stop order, specific referral or some similar action; provided that:

  1. (a) Within ten (10) days of such action, an application for appeal shall be filed with the Administrator; and when applicable, an application for a variance shall be filed with the Administrator; and

  2. (b) Application for appeal or variance shall include reference to the decision or sections of this Planning and Zoning Code from which the appeal or variance is sought and all necessary data in accordance with the form provided.

  3. (c) An application for an appeal may be filed by (i) the person who has been denied a building permit, zoning certificate or any other authorization, (ii) a person who has received a stop work order under any provision of the Codified Ordinances, (iii) any property owner who can prove they would be especially damaged by the issuance of a permit or other administrative approval, or (iv) any property owner who should have received a notice of a request for approval of a project pursuant to Section 1109.05 of this Planning and Zoning Code and who has an interest, established by law, in the disposition of such matter.

  4. (d) Prior to filing an application for a variance from the Board of Zoning Appeals, for the erection, enlargement and/or alteration of a building in the Municipality, the applicant shall be required to first obtain preliminary plan approval from the Architectural Board of Review for such building.

  5. (e) In the event an aggrieved party was provided with incorrect written information from the Administrator, Building Inspector, Secretary of the Planning and Zoning Commission or the Board of Zoning Appeals, or other Village official with authority to provide information on appeal deadlines, as to the date when an appeal from formal action taken pursuant to this Section must be filed, and as a result the aggrieved party is unable to timely file an appeal from such action, the aggrieved party shall have a period of ten (10) days from the date that they discovered the correct deadline to file an appeal, but not to exceed twenty (20) days after formal action has been taken from which an appeal must ordinarily be filed with the Administrator, by filing the appropriate application and information as required by the Planning and Zoning Code.

    In the event an appeal is filed pursuant to this section, the Building Inspector shall issue an order to the permit recipient to discontinue all work authorized under such permit, in accordance with Section 1307.10, during the pendency of the appeal. Further work performed under such permit, during the pendency of the appeal, shall be deemed to be in violation of this provision.
    (Ord. 2022-10. Passed 4-11-22.)

1111.04   Notices

The Board of Zoning Appeals, upon receiving an application for a variance, or an appeal from the decision of the Administrator, Architectural Board of Review or other administrative entity, shall hold a public hearing. Notice of a public hearing shall be in accordance with Section 1109.09 of the Planning and Zoning Code.
(Ord. 2019-39. Passed 8-13-19.)

1111.05   Meetings, quorum and vote

  1. (a) Hearing of Appeals and Variances. The Board shall allow any interested party to submit admissible evidence or testimony to the Board, provided that all testimony shall be submitted under oath, and all interested parties shall be permitted to cross-examine witnesses and present their positions, arguments and contentions. In the event the Board determines that evidence or testimony is not admissible, the Board shall permit the proffer of such evidence in a manner which allows for the creation of a complete record.

  2. (b) Quorum and Vote. A majority of the members of the Board of Zoning Appeals shall constitute a quorum for the transaction of business. In each case a motion or motions shall be made to grant the relief requested. Such motions may be made and seconded by members who are opposed to the motion. The affirmative vote of three members of the Board shall be necessary for any official decision. Failure to receive three (3) affirmative votes will constitute a denial of the motion pending before the Board and will result in an affirmance of the prior administrative action being reviewed, or the requested variance(s) will be considered denied. Prior to voting on a motion, Board members shall state facts which support their decision. Such facts shall become the basis for Conclusions of Fact by the Board. Members may state their agreement with a prior articulation of facts and need not restate all facts supporting their decision prior to voting on the motion.

  3. (c) Decisions and Conclusions of Fact. After the public hearing, the Board shall make its determination which shall include a decision and conclusions of fact. The Board shall also prepare its record in accordance with Section 1111.06 of this Chapter, when the matter will be referred to Council for review of the decision of the Board of Zoning Appeals.
    (Ord. 2019-39. Passed 8-13-19.)

1111.06   Record of decision

  1. (a) As soon as possible after the Board of Zoning Appeals makes any final reviewable decision, the Chief Administrative Officer shall notify, in writing, the Clerk of Council of such action and notify each member of Council, using the electronic mail address they have provided to the Clerk of Council for receiving notices of Council business, or if none, by personal delivery, of the action taken by the Board of Zoning Appeals.

  2. (b) Within fifteen (15) days after receipt of the written notification by the Chief Administrative Officer regarding a final decision made by the Board of Zoning Appeals, any three (3) or more members of Council may, in writing and emailed to the Clerk of Council, with copies provided to each member of Council at their electronic mail address, or if none by personal delivery, in any form or manner such Council members deem appropriate, request that the Clerk of Council set a public hearing to review the decision of the Board of Zoning Appeals, in which case the Council shall receive testimony, and consider the evidence presented to Council, which shall also include the record to be prepared and provided by the Board of Zoning Appeals to Council, including its decision and conclusions of fact, and the decision of Council shall be final in regard to any exception, variance, interpretation or review of orders of administrative officials, boards or agencies of the Municipality, and a majority of Council shall be required to either affirm or reverse the decision of the Board of Zoning Appeals.

  3. (c) Notice of the hearing by Council shall be given as provided in Section 1109.09 of the Planning and Zoning Code, including to the applicant before the Board of Zoning Appeals that is the subject of the review by Council.

  4. (d) If three (3) or more members of Council fail to request a hearing within fifteen (15) days after receipt of notification of the decision of the Board of Zoning Appeals by the Clerk of Council, the decision of the Board of Zoning Appeals shall be final.

  5. (e) The notice to be provided by at least three (3) members of Council to have such Board of Zoning Appeals’ decision reviewed by Council shall provide the name of the applicant, the address of the property that is the subject of the exception, variance, interpretation or review of orders of administrative officials, and which action(s) of the Board of Zoning Appeals will be reviewed by Council, but the failure to include all such information shall not impair Council’s review of the decision.

  6. (f) The Clerk of Council shall give notice of the hearing of the request for review by the three (3) or more Council members to the applicant, the law director, and the secretary of the Board of Zoning Appeals.
    (Ord. 2022-10. Passed 4-11-22.)

1111.07   Reasons for granting variances

  1. (a) The Board of Zoning Appeals, and in the case of a review of the decision of the Board of Zoning Appeals’ decision by Council, may, in specific cases, vary, modify or waive the application of certain provisions of this Planning and Zoning Code, after making findings of fact setting forth the reasons therefor, with such conditions the Board of Zoning Appeals or Council believes are necessary to impose in granting a variance in order that the public health, safety, convenience, comfort and general welfare may be safeguarded and substantial justice done.
    (Ord. 2022-10. Passed 4-11-22.)

  2. (b) Variances shall not be granted for uses not permitted in the zoning district applicable to the property, unless a literal application of this Planning and Zoning Code would result in an unnecessary hardship that:

    1. (1) Was not self-created;

    2. (2) Is due to unique conditions existing on the property;

    3. (3) The property cannot be used for the purposes for which it is zoned;

    4. (4) Will not violate the spirit of the Planning and Zoning Code;

    5. (5) Is the minimum necessary to avoid the unnecessary hardship; and,

    6. (6) Results from special conditions unique to the property being reviewed.

  3. (c) Area variances may be granted on the basis of a finding of a practical difficulty. While no single factor controls in the determination of a practical difficulty, the factors to be considered and weighed include, but are not limited to:

    1. (1) Whether the property will yield a reasonable return or whether there can be any beneficial use of the property without the variance;

    2. (2) Whether the variance is substantial;

    3. (3) Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;

    4. (4) Whether the variance would adversely affect the delivery of governmental services;

    5. (5) Whether the property owner purchased the property with knowledge of the zoning restriction;

    6. (6) Whether the property owner’s predicament feasibly can be obviated through some method other than a variance;

    7. (7) Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting a variance; and,

    8. (8) Whether the variance is based on circumstances that are self- created or exist as a result of actions of the property owner.
      (Ord. 2019-39. Passed 8-13-19.)

1111.08   Variances for yards; supplemental standards

The Board of Zoning Appeals, or in the case of a review of its decision by Council, the Council, may permit variations of yard regulations in a residential district for a lot of record, provided the Board of Zoning Appeals, or Council, as the case may be, finds that privacy will not be impaired, and that light and ventilation will be adequate on such lot and not unduly diminished on adjoining lots.
(Ord. 2019-39. Passed 8-13-19.)

1111.09   Landscape and protective features

The Board of Zoning Appeals, or in the case of a review of its decision by Council, the Council, upon making various determinations, shall endeavor to protect adjoining property, to assure safety of pedestrians and convenience of traffic movements within the area in question, and may require the provision of curbs, guard rails, walls, fences or other landscape or protective features, to further the purposes of this Planning and Zoning Code.
(Ord. 2019-39. Passed 8-13-19.)

1111.10   Action by council

  1. (a) When required to review a decision of the Board of Zoning Appeals, pursuant to Section 1111.06 of the Zoning Code, each case shall be considered by Council upon the record created by the Board of Zoning Appeals, and as supplemented by the evidence presented by the applicant, the Municipality or anyone else interested in the proceeding.

  2. (b) Council shall apply the laws of the Municipality to the facts of the case as those facts are contained in the record which was created by the Board of Zoning Appeals or supplemented in the proceedings before Council, where testimony shall be taken under oath and subject to issuance of subpoenas upon request, and such testimony shall be subject to cross examination whether it be presented at the Board of Zoning Appeals or Council.

  3. (c) In the event the Council does not follow the decision of the Board of Zoning Appeals, Council shall make its own decision and shall adopt Conclusions of Fact which support its decision, and which are found in the record.

  4. (d) Quorum and Vote. A majority of the members of Council shall constitute a quorum for the review of the Board of Zoning Appeals decision. In each case a motion or motions shall be made to grant the relief requested. Such motions may be made and seconded by members who are opposed to the motion. The affirmative vote of four members of Council shall be necessary for any official decision. Failure to receive four (4) affirmative votes will constitute a denial of the review pending before Council and will result in an affirmance of the prior administrative action being reviewed. Prior to voting on a motion, the movant and/or other Council members shall state findings which support their decision. Such findings shall become the basis for Conclusions of Fact by the Council. Members may state their agreement with the proffered findings and need not restate all findings supporting their decision prior to voting on the motion.

  5. (e) At any time prior to a final decision of the Board of Zoning Appeals, or Council, the applicant may withdraw the application. Receipt of notice of the withdrawal of an appeal or an application for a variance or exception, at any time prior to final action by the Board of Zoning Appeals, or Council, as the case may be, shall reinstate the prior decision of any administrative officer or body and the appeal or application for a variance or exception shall be treated as though it had not been submitted, except that the applicant will not be entitled to the return of any fees, deposits or costs required in this Planning and Zoning Code.

  6. (f) After reviewing the Board of Zoning Appeals’ decision, Council may affirm, affirm and modify or reverse the decision of the Board of Zoning Appeals by a majority vote of all of its members.

  7. (g) Immediately following Council’s decision, notice of such decision shall be mailed to the applicant and all interested parties who personally appeared before Council to support affirmance or reversal of the decision of the Board of Zoning Appeals.

  8. (h) The applicant or any interested party who appeared or was represented at the Council meeting(s) where the matter was heard, and was harmed by the action of Council may appeal Council’s decision pursuant to Ohio R.C. Chapter 2506.
    (Ord. 2022-10. Passed 4-11-22.)

1111.11   Time period to file appeal

The applicant or any such interested party who is held by action of Council may appeal Council’s decision pursuant to Ohio R.C. Chapter 2506. The time period to appeal any final decision rendered by either (i) the Board of Zoning Appeals, in the event three (3) members of Council have not requested that Council review a decision of the Board of Zoning Appeals, within fifteen (15) days after such decision, or (ii) by the Council, in the event Council is required to review a decision of the Board of Zoning Appeals pursuant to Section 1111.06 of this Planning and Zoning Code, shall commence to run upon the date that the Administrator or his designee sends notice, by electronic mail, or by depositing a letter with the United States Postal Service, with postage pre- paid, notifying the aggrieved party who first filed an appeal to the Board of Zoning Appeals of the final decision of the Board of Zoning Appeals, or the Council, as the case may be. The notice shall be sent to the e-mail address or residence or business address designated by the applicant when filing an application for relief from the Board of Zoning Appeals. Failure of the applicant to receive such notice shall not be a basis for tolling or extending the time period to file an appeal pursuant to Ohio R.C. Chapter 2506.
(Ord. 2021-20. Passed 5-24-21.)