Mendocino County Municipal Code Ch. 20.540 Variances

A variance is an exception from zone restrictions granted by the Coastal Permit Administrator upon application when, because of special circumstances applicable to the property, including size, shape, topography, location, or surroundings, the strict application of the zoning ordinance deprives the property of privileges enjoyed by other property in the vicinity and under identical zoning classification. Variances shall not be granted to authorize uses or activities which are not otherwise expressly authorized by the regulations of this Division.

(Ord. No. 3785 (part), adopted 1991)

The original jurisdiction shall be exercised over variances as follows:

(A) Concurrent Application. When an application for granting or modifying a variance is submitted concurrently with an application for granting or modifying another coastal permit and said variance would be incidental and necessary to said permit, the variance shall be designated as a concurrent variance and the application shall be reviewed by the approving authority.

(B) Regular Variance. All other variances shall be designated as a regular variance and applications for their granting or modification shall be under the jurisdiction of the Coastal Permit Administrator.

(Ord. No. 3785 (part), adopted 1991)

Applications for a variance or modification thereof shall be filed with the Coastal Permit Administrator upon such forms and accompanied by such plans and data as may be prescribed by the Coastal Permit Administrator so as to assure the fullest practical presentation of facts for the permanent record. Such application shall be accompanied by a fee.

(Ord. No. 3785 (part), adopted 1991)

Before any variance may be granted or modified it shall be shown:

(A) That there are special circumstances applicable to the property involved, including size, shape, topography, location, or surroundings; and

(B) That such special circumstances or conditions are not due to any action of the applicant subsequent to the application of the zoning regulations contained in this Division and applicable policies of the Coastal Element; and

(C) That such variance is necessary for the preservation and enjoyment of privileges possessed by other property in the same vicinity and zone and denied to the property in question because of the special circumstances identified in Subsection (A); and

(D) That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in such vicinity and zone in which the property is located; and

(E) That the variance does not authorize a use or activity that is not otherwise expressly authorized by the zoning provisions governing the parcel; and

(F) That the granting of such variance is in conformity with all other provisions of this Division and the Mendocino Coastal Element and applicable plans and policies of the Coastal Act.

(Ord. No. 3785 (part), adopted 1991)

(A) Action. Upon completion of review and evaluation of an application for a variance, the Coastal Permit Administrator or other approving authority pursuant to Section 20.540.010(A) shall either:

(1) Make such findings or other determination as is required by the pertinent sections of the zoning code and approve the application. The variance may be granted for the full dimensions and extent as requested by the applicant.

(2) Notify the applicant of the changes and modifications required for approval of the application, or

(3) Deny the variance. The Coastal Permit Administrator shall deny the variance if:

(a) The variance cannot be conditioned by adequate requirements to insure compliance with applicable regulations and applicable plans and policies of the Coastal Act; or

(b) The application for the variance cannot reasonably be modified to conform to the applicable development requirements; or

(c) The required findings of Section 20.540.020 cannot be made.

(B) Time Period. Within one hundred eighty (180) days of filing of a complete application for a variance, the Coastal Permit Administrator shall take such action as is specified in subsection (A) above. The one hundred eighty (180) day time period may be extended ninety (90) days with the written consent of the applicant and the department. If the Coastal Permit Administrator does not act within the specified time period or extension thereof, the application shall be deemed to have been approved. The date of the actual filing of the application for the purposes of this section shall be the date of the environmental determination as required by local and state environmental review procedures. When an application has been deemed approved by failure to act, such approval shall be subject to the notice requirements of Section 20.536.010(F).

(C) Public Hearing and Notice. A public hearing and notice shall be required in accordance with Section 20.536.010.

(Ord. No. 3785 (part), adopted 1991)

Any variance granted may be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. Guarantees to insure compliance with the terms and conditions may be required by the approving authority.

Decisions of the approving authority on an application for a development appealable to the Coastal Commission shall become final and effective after the ten (10) working day appeal period to the Coastal Commission has expired and no appeal has been filed with the Coastal Commission. Where an application for a development is not appealable to the Coastal Commission, the decision of the approving authority shall become final and effective on the eleventh (11th) day following the action of the approving authority to approve or deny the variance unless prior to said eleventh (11th) day an appeal of the decision is filed as provided by Chapter 20.544.

(Ord. No. 3785 (part), adopted 1991)

Each valid unrevoked and unexpired variance shall expire and become null and void at the time specified in such variance, or if no time is specified, at the expiration of two (2) years after granting except where construction and/or use of the property in reliance on such variance has been initiated prior to its expiration. To remain valid, progress toward completion of the project must be continuous.

(Ord. No. 3785 (part), adopted 1991)

Any person holding a variance may apply for an amendment by complying with Section 20.540.015. For the purposes of this section, the amendment of a variance may include modification of the terms of the variance itself or the application, waiver or alteration of conditions imposed pursuant to Section 20.540.030.

(Ord. No. 3785 (part), adopted 1991)

A variance may be revoked or modified for cause as provided by the provisions of this section. For purposes of this section, the modification of a variance may include modification of the terms of the variance itself or the waiver, alteration or imposition of new conditions pursuant to Section 20.540.030.

(A) Grounds for Revocation or Modification. A variance may be revoked or modified pursuant to the provisions of this section on any one or more of the following grounds:

(1) That such variance was obtained or extended by fraud;

(2) That one or more of the conditions upon which such variance was granted have been violated;

(3) That the use for which the variance was granted is so conducted as to be detrimental to the public health, welfare or safety, or as to be a nuisance;

(4) A final judgment of a court of competent jurisdiction has declared one (1) or more conditions to be void or ineffective, or has enjoined or otherwise prohibited the enforcement or operations of one (1) or more such conditions.

(B) Initiation of Action. An action to revoke or modify a variance may be initiated by order of the Board of Supervisors, or the approving authority, whichever granted or modified the variance, on its own motion or on the request of any County Officer; provided however that the Board of Supervisors may initiate an action to revoke or modify any variance granted or modified by the Coastal Permit Administrator.

(Ord. No. 3785 (part), adopted 1991)

No application for the granting of a variance which has been denied shall be filed earlier than one (1) year after the date such denial becomes effective, unless the request for reapplication reflects a major change in circumstances and specific permission to do so has been granted as follows:

(A) Denial by Coastal Permit Administrator. If the Coastal Permit Administrator has denied the variance, permission to reapply may be granted by the Coastal Permit Administrator or the Board of Supervisors.

(B) Denial by the Planning Commission. If the Planning Commission has denied the variance, permission to reapply may be granted by the Planning Commission or Board of Supervisors.

(C) Denial by the Board of Supervisors. If the Board of Supervisors has denied the variance, permission to reapply may be granted by the Board of Supervisors.

(Ord. No. 3785 (part), adopted 1991)

The granting or modification of any variance to these provisions shall not authorize or legalize the maintenance of any private or public nuisance.

(Ord. No. 3785 (part), adopted 1991)