Chapter 10.98 — VARIANCES AND MINOR VARIANCES

A. Purpose. Variances and Minor Variances are only approved when, because of special circumstances applicable to the property, the strict application of this Zoning Code denies the owner of the property privileges enjoyed by other property located nearby and in an identical zone.

• B. Does not extend to Land Uses.

1. The power and authority to approve Variances and Minor Variances does not extend to allowable land uses.

2. Flexibility in allowable land uses is provided in Chapter 10.84 (Conditional Use Permits and Minor Use Permits). (Ord. 935 § 3 (part), 2015)

A. Variances. The Commission may approve a Variance that allows adjustments from any of the development standards required by this Zoning Code.

B. Minor Variances. The Director may approve Minor Variances in compliance with Table 6-3 (Types of Minor Variances Allowed), below.

(Ord. 935 § 3 (part), 2015)

A. Responsibility. The applicable review authority shall approve or deny Variance and Minor Variance applications, and impose conditions deemed reasonable and necessary to preserve the public convenience, health, interest, safety, or welfare; necessary to ensure that the Variance or Minor Variance does not constitute a grant of special privileges inconsistent with the limitations on other properties in the vicinity and zone of the subject property; and necessary to make the findings required by Section 10.98.050 (Findings and Decision) below.

B. Applicable Review Authority. Variances and Minor Variances may be approved in compliance with the following:

1. Variances. Variances shall be approved or denied by the Commission in compliance with this Chapter and State law.

2. Minor Variances. Minor Variances shall be approved or denied by the Director in compliance with this Chapter and State law. The Director may, however, defer action and refer the application to the Commission for review and final decision in compliance with this Chapter and State law. (Ord. 935 § 3 (part), 2015)

A. Filing. An application for a Variance or Minor Variance shall be filed and processed in compliance with Chapter 10.82 (Permit Application Filing and Processing). The application shall include the information and materials specified in the Department handout for Variance or Minor Variance applications, together with the required fee in compliance with the Planning Fee Schedule. It is the responsibility of the applicant to provide evidence in support of the findings required by Section 10.98.050 (Findings and Decision), below.

B. Project Review Procedures. Following receipt of a completed application, the Director shall investigate the facts necessary for action consistent with the purpose of this Chapter.

• C. Notice, Hearings, and Appeals.

1. Variances - Public Hearing Required. A public hearing shall be required for the Commission's decision on a Variance application.

a. Notice. Notice of the public hearing shall be given and the hearing shall be conducted in compliance with Chapter 10.116 (Public Notices and Hearings).

b. Appeals. The Commission's decision is appealable to the Council in compliance with Chapter 10.114 (Appeals).

2. Minor Variances - Public Hearing Not Required. Before a decision on a Minor Variance application, the City shall provide notice in compliance with this Section.

a. Notice.

(1) Upon receipt of a complete application for a Minor Variance, the City shall send a notice of application review to the applicant/property owner and all property owners located within a 100-foot radius of the subject site. The notice shall include a description of the project, location, and request, and shall indicate the date a decision will be made. The date shall be no later than 10 days following release of the notice.

• (2) Those receiving notice shall be given the opportunity to submit written comments supporting or opposing the request to the Director.

(3) Following the Director’s decision on the Minor Variance request, a copy of the decision shall be mailed to those who received the original notice. The notice of decision shall include information regarding the action taken,

findings, and conditions for the action as applicable, along with the appeal period and the provisions for filing an appeal to the Commission in compliance with Subparagraph b. (Appeals), below.

b. Appeals. The Director’s decision is appealable to the Commission in compliance with Chapter 10.114 (Appeals). (Ord. 935 § 3 (part), 2015)

A. Authorized Actions. The Commission (Variance) or the Director (Minor Variance) shall record the decision in writing and shall recite the findings upon which the decision is based, in compliance with Government Code Section 65906 or as that Section may be amended from time to time. The Director may refer the application for a Minor Variance to the Commission for review and final decision.

B. Required Findings. The applicable review authority may approve, approve in modified form, conditionally approve, or deny a Variance or Minor Variance application, subject to all of the following findings.

1. General Findings. The review authority may approve a Variance or Minor Variance application only after first making all of the following findings:

a. There are special circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features, etc.) that do not apply generally to other properties in the same zone and vicinity;

b. Strict compliance with and application of Zoning Code requirements would deprive the subject property of privileges enjoyed by other property in the vicinity and under an identical zoning classification;

c. Approving the Variance or Minor Variance:

(1) Is necessary for the preservation and enjoyment of substantial property rights possessed by other property in the same vicinity and zone but which is denied to the subject property;

(2) Will not constitute a grant of special privilege inconsistent with the limitations on other properties in the same vicinity and zone;

(3) Will not adversely affect the health, safety, and general welfare of persons residing or working in the neighborhood, or be materially detrimental or injurious to property or improvements in the same vicinity and zone; and

(4) Will not be in conflict with the purpose and intent of this Chapter, this Zoning Code, the General Plan, or any applicable specific plan.

d. The requested Variance or Minor Variance does not allow a use or activity that is not otherwise expressly authorized by the regulations governing the subject parcel.

2. Findings for Off-site Parking Variance. The approval of a Variance to allow some or all of the parking spaces required for a nonresidential project to be located off-site, or to allow in-lieu fees or facilities instead of the required on-site parking spaces, shall require that the review authority first make both of the following findings in compliance with Government Code Section 65906.5, instead of those required by Subparagraph B.1. (General findings), above:

a. The Variance will be an incentive to, and a benefit for, the nonresidential development; and

b. The Variance will facilitate access to the nonresidential development by patrons of public transit facilities. C. Failure to Make Findings. The review authority shall deny the application when it fails to make any one or more of the required findings. (Ord. 935 § 3 (part), 2015)

The Director’s decision to deny a Minor Variance application shall not prohibit or affect the right of the applicant to file an application for a Variance in compliance with Subsection 10.98.020 A. (Variances), above. (Ord. 935 § 3 (part),

Each application shall be reviewed on an individual case-by-case basis and the approval of a prior Variance or Minor Variance is not admissible evidence for the approval of a new Variance or Minor Variance. (Ord. 935 § 3 (part), 2015)

The burden of proof to establish the evidence in support of the findings, required by Section 10.98.050 (Findings and Decision), above, is upon the applicant. (Ord. 935 § 3 (part), 2015)

In approving a Variance or Minor Variance application, the applicable review authority may impose conditions deemed reasonable and necessary to ensure that the approval would be in compliance with the findings required by Section 10.98.050 (Findings and Decision), above. (Ord. 935 § 3 (part), 2015)

Permits shall not be issued for any structure proposed in an application for a Variance or Minor Variance until and unless the same shall have become final, in compliance with Section 10.102.030 (Effective Dates of Permits). (Ord. 935 § 3 (part), 2015)

The procedures and requirements in Chapter 10.102 (Permit Implementation, Time Limits, and Extensions), and those related to appeals and revocation in Article 7 (Zoning Code Administration) shall apply following the decision on a Variance or Minor Variance application. (Ord. 935 § 3 (part), 2015)