Mendocino County Municipal Code Ch. 20.724 Variances

A variance is an exception from zone restrictions governing setbacks, building heights, and lot widths that is 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 modify any other Mendocino Town LCP requirements development regulations or authorize uses or activities which are not otherwise expressly authorized by the Mendocino Town Plan and the regulations of this Division.

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

The original jurisdiction of the County 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 a Mendocino Historical Review Board approval and said variance would be incidental and necessary to it the variance shall be designated as a concurrent variance and the application shall be reviewed by the Historical Review Board. Setback and building height exceptions reviewed by the Mendocino Historical Review Board shall not be subject to the requirements of this Chapter.

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

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

Editor's note— Ord. No. 4395, § 2, adopted November 17, 2017 amended § 20.724.010 to read as set out herein. Previously § 20.724.010 was titled "Original Jurisdiction."

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 payment.

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

Editor's note— Ord. No. 4395, § 2, adopted November 17, 2017, amended § 20.724.015, to read as set out herein. Previously § 20.724.015 was titled "Application and Fee."

Before any variance may be granted or modified, the Coastal Permit Administrator or the Mendocino Historical Review Board, as applicable, shall find, on substantial evidence in the record as a whole:

(A) That there are special circumstances applicable to the real 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 certified Town Plan of the Coastal Element of the General Plan; and

(C) That such variance is necessary for the preservation and enjoyment of privileges possessed by other real property in the same vicinity and Zoning District and denied to the real 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 real property or improvements in such vicinity and zoning district in which the real 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 lot; and

(F) That the granting of such variance is in conformity with all other provisions of this Division, the certified Mendocino Town Plan, and applicable public access and recreational policies of Chapter 3 of the Coastal Act, as amended (Public Resources Code Sections 30210—30224).

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

(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 20.724.010(A) shall either:

(1) Make such findings or other determination as is required by the applicable sections of this Division and approve the application. The variance may be granted 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 the applicable requirements of this Division, the certified Town Plan, or the public access and recreation policies of Chapter 3 of the Coastal Act (Public Resources Code Sections 30210—30224); 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 20.724.020 cannot be made.

(B) Time Period.

(1) 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 once for a period not to exceed ninety (90) days with the written consent of the applicant and the department.

(2) In the event that the Coastal Permit Administrator fails to act to approve or disapprove a development project within the time limits required above, the applicant may seek remedy to resolve the undecided permit request as set forth in California Government Code Section 65956.

(3) Failure to act — notice.

(a) Notification by Applicant. If the Coastal Permit Administrator has failed to act on an application within the time limits set forth in Government Code Sections 65950—65957.1, thereby approving the development by operation of law, the person claiming a right to proceed pursuant to Government Code Sections 65950—65957.1 shall notify, in writing, the County and the Coastal Commission of his or her claim that the development has been approved by operation of law. Such notice shall specify the application which is claimed to be approved.

(b) Notification by County. When the County determines that the time limits established pursuant to Government Code Sections 65950—65957.1 have expired, the County shall, within seven (7) calendar days of such determination, notify any person entitled to receive notice pursuant to Title 14, California Code of Regulations Section 13571(a) that the application has been approved by operation of law pursuant to Government Code Sections 65950—65957.1 and the application may be appealed to the Coastal Commission pursuant to Section 20.728.020. This Section shall apply equally to a County determination that the project has been approved by operation of law and to a judicial determination that the project has been approved by operation of law.

(C) Public Hearing and Notice. A public hearing and notice shall be required in accordance with Chapter 20.720.

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

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.

(Ord. No. 3915 (part), adopted 1995.)

Decisions of the Coastal Permit Administrator made pursuant to Section 20.724.025 (Decisions) that are not appealable to the Coastal Commission shall become final and effective on the eleventh (11th) day following the action of the Coastal Permit Administrator to approve or deny the variance, unless prior to said eleventh (11th) day an appeal of the decision is filed as provided by Chapter 20.728 (Appeals). Where a decision is appealable to the Coastal Commission, the decision 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.

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

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. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

Any person holding a variance may apply for an amendment by complying with Section 20.724.015 (Application and Fees). 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 20.724.030 (Conditional Variance).

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

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 alterations or imposition of new conditions pursuant to Section 20.724.030 (Conditional Variance).

(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 my initiate an action to revoke or modify any variance granted or modified by the Coastal Permit Administrator.

(Ord. No. 3915 (part), adopted 1995.)

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 Mendocino Historical Review Board. If the Mendocino Historical Review Board has denied the variance, permission to reapply may be granted by the Mendocino Historical Review Board or the Board of Supervisors.

(C) 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.

(D) 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. 3915 (part), adopted 1995.)

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. 3915 (part), adopted 1995.)