Chapter 17.96 — VARIANCES

When in the establishment of zones certain properties are included which cannot enjoy the same possibilities for usage that other parcels in the same zone do, thus causing practical difficulties and unusual hardships because of some physical problems, such as size of lot, shape of lot, slope of terrain or condition of the soil, a variance may be issued to permit the subject properties the rights and privileges generally allowed in the zone. The variances shall be limited to modifications in property development standards such as height, yards, setbacks and coverage. A variance may not be issued to permit a use not specifically listed in any zone. (`78 Code, § 17.96.010.)

(A) Neither the Commission nor the Council may grant a variance from the terms of this title, including any requirement provided therein, unless it has first found from the evidence admitted during the hearing before the Commission or Council that because of special circumstances, applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the terms of the zoning regulations from which the variance is being sought deprives the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classification.

(B) At the time of granting any variance, the Commission or Council shall impose thereon such conditions as will assure that the adjustment authorized by the variance shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which subject property is located and further assure that the variance shall not adversely affect property and the use thereof in the vicinity of subject property and the public health, safety and general welfare.

(`78 Code, § 17.96.020.)

Application for a variance shall be filed with the Secretary of the Planning Commission by the owner of the property for which the variance is sought, by the lessee having a leasehold interest of not less than five years exclusive of an option to renew or by the agent of any of the foregoing duly authorized in writing. (`78 Code, § 17.96.030.)

Application shall be made to the Commission on forms furnished by the Planning Department and shall set forth in detail the reasons for the requested variance, indicating how the conditions set forth in § 17.96.020 are satisfied, and shall provide other information as may be prescribed by the Commission to assist in determining the validity of the request. The application shall be verified before a notary public by the applicant and by the property owner and the date of verification shall be noted on the application. An incomplete application shall not be accepted for filing. (`78 Code, § 17.96.040.)

A site plan as described in Chapter 17.102 of the proposed use shall be submitted as a part of the application. (`78 Code, § 17.96.050.)

A list of property owners and their addresses within a radius of 300 feet of the exterior boundary of the property shall be furnished by the Department. (`78 Code, § 17.96.060.)

When the application for a variance is filed, a uniform fee as established by City Council resolution or any amendments thereto shall be paid for the purpose of defraying the costs incidental to the proceedings. (`78 Code, § 17.96.070.)

A filing fee as established by City Council resolution or any amendments thereto shall be paid to the city for an appeal to the City Council from a decision of the Planning Commission relating to an application for a variance at the time of filing such appeal.

(`78 Code, § 17.96.080.)

The Planning Department shall make an investigation of the facts bearing on each case to provide the information necessary for action consistent with the intent and purpose of this title and shall report the findings to the Commission. (`78 Code, § 17.96.090.)

(A) The hearing date shall be set by the Planning Director for not less than ten nor more than 45 days after the filing of the verified application with the Board.

(B) Notice of public hearing shall contain the time and place of the hearing and the location of the subject property and nature of the variance requested.

(C) Notice shall be published at least once in a newspaper of general circulation in the city not less than ten days before the hearing date.

(D) Notice shall be mailed, postage prepaid, not less than ten days before the hearing date to owners of property within a radius of 300 feet of the exterior boundaries of the subject property.

(E) Notice shall be posted in front of the property under consideration, not less than ten days prior to the date of such hearing, such notice consisting of the words "NOTICE OF PROPOSED VARIANCE" printed in plain type with letters of not less than one inch in height and containing a statement in legible characters setting forth a description of the property under consideration, the nature of the proposed variance and the time and place at which such public hearing on the matter will be held before the Commission. The notice may also be posted not more than 150 feet of the external boundaries of the property involved.

(F) The Commission shall, not less than ten nor more than 30 days after the mailing of the legal notice of a public hearing on a variance application, hold said public hearings.

(`78 Code, § 17.96.100.)

The Commission shall announce and record its decision within 35 days after the conclusion of the hearing. The decision shall be final unless appealed to Council and shall set forth findings in support of the decision. (`78 Code, § 17.96.110.)

The Commission, in approving a variance, may set forth in its decision reasonable conditions which shall assure the intent and purpose of this chapter. (`78 Code, § 17.96.120.)

(A) For variances associated with tentative tract maps, a time limit for occupancy or commencement of construction concurrent with the life of the tentative tract map shall apply. If the tentative tract map expires, the associated variance shall also expire. If such tentative tract map is approved as a final map variance, the new time limit on the associated variance shall be two years from the date of map recordation.

(B) For all other variances, a time limit of two years for occupancy or commencement of construction shall be assumed unless some other period is established by the Planning Commission at the time a variance is granted. (`78 Code, § 17.96.130.) (Ord. 2128 § 3, 1992; Ord. 1653 § 2, 1982.)

(A) No variance granted or authorized by the Commission, as provided in this chapter, shall become effective until ten days after the date of the resolution granting and authorizing said variance or until the effective date thereof as provided in the variance; provided, that the latter date is more than ten days later than the effective date of the resolution.

(B) All decisions of the Commission concerning the merits of the applications shall be final unless appealed within the time period prescribed in § 17.96.150 or unless the Council initiates a review thereof. (`78 Code, § 17.96.140.)

Appeal of all Commission decisions under this chapter shall be made pursuant to Chapter 17.93. (`78 Code, § 17.96.150.) (Ord. 1980 § 4, 1990; Ord. 1575 § 2, 1980.)

(A) The Planning Commission, on its own motion may, and upon the direction of the Council shall, hold a hearing upon the question of the revocation of a variance granted under, or pursuant to, the provisions of this chapter.

(B) Written notice of such public hearing shall be served on the owner of the property for which such variance was granted, at least ten days before such public hearing. The notice may be served either personally or by registered mail, postage prepaid, return receipt requested.

(C) A variance, whether granted automatically for a nonconforming prior use, or pursuant to a hearing, may be revoked if the Commission and Council find:

• (1) That the use is detrimental to the public health or safety or is a nuisance;

• (2) That the variance was obtained by fraud;

• (3) That the use for which the variance was granted is not being exercised;

• (4) That the use for which the variance was granted has ceased, or been suspended for one year or more;

• (5) That the condition of the improvements, if any, on a property for which a nonconforming variance is operative

is such that they can be used or altered so as to be used in conformity with the uses permitted in the zone in which such property is located without impairing the constitutional rights of any person.

(D) After a hearing upon the revocation of a variance, the Planning Commission shall report its findings of fact and recommendations, the Council shall determine the facts and may revoke, modify or allow to remain unchanged the variance in accordance with the Commission’s final determination in such matters.

(`78 Code, § 17.96.160.)

No person shall reapply for a similar variance on the same land, building or structure within a period of one year from the date of the final decision on such previous application unless such decision is a denial without prejudice. (`78 Code, § 17.96.170.)

Any variance granted prior to the effective date of the ordinance codified in the chapter shall be a variance under this title subject to all conditions imposed in such variance unless otherwise provided in this title. Such variance may, however, be revoked or voided as provided in § 17.96.160. (`78 Code, § 17.96.180.)