Division 5 — VARIANCE

The purpose of this division is to provide a process to achieve flexibility in the application of land use and development regulations necessary to achieve the general purpose and intent of this chapter, secure public safety and welfare, and ensure substantial justice is done. Variances are intended to resolve practical difficulties or unusual physical hardships that may result from the size, shape or dimensions of a site or the location of existing structures thereon; from geographic, topographic or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site. A variance shall not be granted to permit a use not permitted in the zone pursuant to this chapter.

(Ord. No. 24-03, § 2, 9-17-24)

(a)

Conditions necessary to granting a variance. The commission, before it may grant a variance, shall make a finding that in the evidence presented, all of the following conditions exist in reference to the property being considered.

(1)

Because of special circumstances applicable to subject property, including size, shape, topography, location, or surroundings, the strict application of this chapter would deprive subject property of privileges enjoyed by other properties in the vicinity and under identical zone classification.

(2)

Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which subject property is situated.

(3)

The granting of the variance will not be materially detrimental to the public health, safety, convenience, or welfare or injurious to property and improvements in the same vicinity and zone in which subject property is situated.

(4)

The granting of such variance will not adversely affect the general plan for the city.

(b)

Procedure. Where required by this chapter, variance application review is to be conducted by the planning commission following the community development director's review and report of findings to the commission. decisions of the planning commission are filed with the city council and considered final unless the council acts to modify or deny the decision of the commission. Figure 29-312.1 illustrates the variance process described below:

(1)

Application. An application for a variance shall be made on forms furnished by the community development department and shall be filed by the owner of the property for which the variance is sought, by the lessee having a leasehold interest of not less than five (5) years exclusive of an option to renew, or by the agent of any of the foregoing duly authorized in writing. The applicant shall indicate how the conditions set forth in section 29-312(a) are satisfied, shall provide a site plan of the proposed use, as described in division 4 of this article, as part of the application, and shall provide other information as may be prescribed by the community development director 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 date of verification shall be noted on the application. An incomplete application shall not be accepted for filing.

(2)

Filing fee. When the application for a variance is filed, a fee as established by the city council shall be paid, for the purpose of defraying the costs incidental to the proceedings.

(3)

Staff investigation. The community development director 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

chapter, and shall report the findings to the commission. The director shall also evaluate the application for compliance with state environmental laws.

(4)

Planning commission hearing.

a.

Public hearing required. Upon receipt of the report of the community development director, the planning commission shall hold a public hearing on the proposal.

b.

Notice. Notice of a hearing shall be given in accordance with division 2 of this article.

c.

Commission action. The commission may approve, approve with conditions or disapprove the application. The decision shall set forth the findings of the commission. All decisions of the commission shall be final unless modified or denied by the council.

d.

Conditions to use. The commission, in approving a variance, may set forth in its decision reasonable

conditions which shall assure the intent and purpose of this chapter. A time limit of one hundred eighty (180) days for occupancy or commencement of construction shall be assumed unless some other period is established. Action by city council.

e.

Filing of decision with council. The decision and findings shall be filed with council at their first meeting when such commission decision can be scheduled on the council agenda. A copy of said decision shall be mailed to the applicant at the address shown on the application.

f.

Timing. All decisions of the commission shall be scheduled before the council at the next available meeting after said commission decision. The report shall include the findings of the commission and reasons for their action.

g.

Decision. The decision of the commission shall be final unless the council elects to consider, modify or deny said commission decision in which event a public hearing will be set by the council and notice thereof shall be given in accordance with division 2 of this article.

(5)

Action by community development director. In absence of a denial by the council of a commission decision, the community development director shall have the authority to approve the issuance of all permits or licenses by any department or person vested with the authority to issue same concerning said commission decision.

(6)

Reapplication. No person shall reapply for a similar variance on the same land, building or structure within a period of one (1) year from the date of the final decision on such previous application unless such decision is a denial without prejudice.

Figure 29-312.1 Variance Procedure

==> picture [420 x 479] intentionally omitted <==

(Ord. No. 24-03, § 2, 9-17-24)

(a)

Authority. The commission may, after notice and public hearing revoke any variance granted by the commission for noncompliance with any of the conditions set forth in the granting of said variance. The council may revoke any variance granted by the council for the same cause after notice and a public hearing.

(b)

Notice.

(1)

Notice shall be mailed to the record owner or lessee of the subject property not less than twenty (20) days prior to giving public notice. Said notice shall state the complaint and shall request appearance by said owner or lessee at the time and place specified for the hearing to show cause as to why the variance should not be revoked.

(2)

Public notice shall be given as provided in division 2 of this article.

(c)

Time period for revocation. Following the public hearing, the council or commission shall by resolution revoke, modify or confirm the variance. If revoked, the subject property shall be subject to all regulations of the zone in which it is located.

(d)

Time period for construction. If the one hundred eighty (180) day or other established time limit expires and construction has not commenced or occupancy has not taken place, the variance shall be considered void. No notice need be given nor hearing held.

(e)

Termination of rights after non-use for year. Termination of a use developed under a variance granted herein, for a period of one (1) calendar year, shall terminate the variance rights granted for said use. No notice need be given nor hearing held.

(Ord. No. 24-03, § 2, 9-17-24)

Sec. 29-314. - Existing variances.

Any variance granted pursuant to any zoning ordinance enacted prior to the effective date of this chapter shall be construed to be a variance under this chapter, subject to all conditions imposed in such variance unless otherwise provided herein. Such variance may, however, be revoked or voided as provided in this division.

(Ord. No. 24-03, § 2, 9-17-24)

Secs. 29-315—29-318. - Reserved.