Montclair Municipal Code Ch. 11.82 Variances

A. When practical difficulties, unnecessary physical hardships, or results inconsistent with the general intent and purpose of this title would occur from the literal interpretation and enforcement of any of its provisions, the Planning Commission shall have the authority to grant a variance upon approved terms and conditions as may be deemed necessary to ensure that the intent and purpose of this title and the public health, safety and welfare will be promoted.

B. The granting of a variance shall be subject to such conditions as will ensure 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 the subject property is situated. Under no circumstance shall this provision be utilized to permit a use inconsistent with the existing zone or the adopted General Plan Land Use designation.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1920)

A. Any property owner, or his/her authorized representative, desiring a variance may file an application for such with the Planning Division on forms to be furnished by the City, along with the following items in order to complete the application:

1. A legal description of the property involved and the proposed use, with plot plans and other appropriate drawings showing existing or proposed buildings or facilities, and the reasons for the requested variance;

2. Names and mailing addresses, typed on mailing labels, of all owners of real property within 300 feet from the external boundaries of the property involved as shown on the latest adopted, publicly available tax roll of the County;

3. A filing fee, the amount of which shall be determined by resolution of the City Council;

4. Variance justification form;

5. Environmental assessment form; and

6. Other information as may be required by the Planning Commission.

B. No application for the same general variance concerning the same property, which application has been recommended for denial by the Commission or denied by the Commission and/or the Council on appeal, shall be received or processed by the Secretary of the Commission within 12 months after such denial, except by the consent of at least four members of the Planning Commission present at a regular meeting of the Commission.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1921)

A. Upon the acceptance of a completed application for a variance, the Secretary of the Planning Commission shall forward the application to the Development Review Committee for review and comments and shall provide the applicant with appropriate recommendations and comments from the Development Review Committee. A date shall then be set by the Secretary of the Planning Commission for a public hearing before the Planning Commission. The date of the hearing shall not be less than 10 days nor more than 40 days from the date the application is deemed completed.

B. The Secretary of the Planning Commission shall give notice of such requested variance and of the time and place of such hearing as follows:

1. By one publication in a newspaper having a general circulation in the City at least 10 days, but no more than 15 days, prior to the date set for the hearing; and

2. By mailed notice not less than 10 days prior to the date set for the hearing to all owners of property within a radius of 300 feet of the external boundaries of the property described in the application, using for this purpose the last known name and mailing address of such owners as are shown on the tax roll of the County, and may, at the discretion of the Planning Commission, give additional notice.

C. The Planning Commission shall cause to be made, by its own members or members of its staff, such investigation of facts bearing upon such application set for hearing, including an analysis of precedent cases as in the opinion of the Planning Commission will serve to provide the necessary information to enable the Planning Commission to act.

D. A copy of the staff report shall be made available to the applicant and to the general public, upon request, prior to the hearing.

E. At the time and place so fixed and noticed, the public hearing shall be conducted before the Planning Commission. The Planning Commission shall consider all pertinent oral and written evidence and information prior to adoption of a formal and numbered resolution authorizing or denying such variance. A summary of all pertinent testimony offered at the hearing, the names and addresses of persons testifying, copies of all notices, affidavits of publication, and records of action taken shall be a part of the permanent files of the case.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1922)

A. Findings. The Planning Commission, before granting a variance, must adopt a resolution stating that the evidence presented shows that each of the following findings have been made:

1. That because of special circumstances applicable to the subject property, including its size, shape, topography, location or surroundings, the strict application of the provisions of this title is found to deprive the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classifications;

2. That such variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, which right is possessed by other property owners in the vicinity and under identical zone classifications;

3. That the granting of such variance will not be materially detrimental to the public welfare or injurious to other property or improvements in the vicinity and zone in which the subject property is located; and

4. That the granting of such variance will not be contrary to the objectives of any part of the adopted General Plan.

B. Conditions.

1. The Planning Commission may grant the requested variance in whole or in part upon said items and conditions as it may deem necessary to safeguard and protect the public health, safety, general welfare, the existing and possible uses on adjoining lands in the neighborhood, the proper handling and regulation of traffic, and to ensure the eventual development of the property with respect to which the variance is granted.

2. Prior to the issuance of any building or occupancy permit, the owner and anyone applying on his/her behalf shall agree, in writing, to meet and abide by all the conditions and requirements imposed on the project requiring such variance.

C. Time Limit.

1. A variance granted by the Planning Commission pursuant to this chapter shall be utilized within six months after the effective date thereof, unless a shorter or longer time period is established by the Planning Commission. If it is not so utilized or if preliminary construction work has not begun within such time and carried on diligently to the completion of at least 25 percent of the approved project, this authorization shall become void, and any privilege or permit granted thereby shall be deemed to have lapsed. The Planning Commission, however, shall have the authority to extend the time limit for another six months for good cause and in the case of unavoidable delay, upon submittal of a written request and the required time extension filing fees by the applicant at least 10 days prior to the expiration date.

2. As a condition for granting an extension of time, the Planning Commission may revise existing conditions or impose additional conditions to ensure that the variance will be in compliance with City standards in effect at the time such extension is granted.

3. The privileges of a variance shall lapse and become null and void if the use, structure, sign, or other improvement is abandoned for a period of six months or longer.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1923)

A. The action of the Planning Commission shall become final on the date the Planning Commission makes its final determination. However, within 10 days after the date of the Planning Commission's decision, a written appeal therefrom may be taken to the City Council by any person aggrieved by the determination of the Planning Commission in connection with the application. Such appeal shall be accompanied by the required appeal fee, which shall be one-half of the initial variance filing fee. The City Council, on its own motion, may appeal any determination of the Planning Commission. An appeal fee shall not be required in the event of such City Council appeal. Such appeal, except on the City Council's own motion, shall be filed in triplicate with the City Clerk and shall state the grounds therefor and wherein the Planning Commission erred or failed to conform to the requirements of the provisions of this title. The City Clerk shall forthwith transmit one copy of the appeal to the Secretary of the Planning Commission, one copy to the applicant, and the other copies to the members of the Planning Commission. An appeal shall stay all proceedings in furtherance of the action appealed from until the determination or dismissal of the appeal, withdrawal of the application, or any other disposition of the appeal by the City Council or the applicant. In the event the City Council makes no decision or other specific disposition on the appeal within 90 days after the same is filed, the appeal shall be deemed to have failed, and the determination of the Planning Commission shall remain as the final determination on the application.

B. At the next regularly scheduled Planning Commission meeting subsequent to the receipt of an appeal, the Planning Commission shall, within 10 days, transmit to the City Council the original application and copies of all other papers constituting the record upon which the action was taken, together with a written report disclosing in what respects the application, and facts offered in support thereof, met or failed to meet the requirements set forth in this title and why the proposed variance should or should not be granted.

C. The City Council may, by resolution, affirm, reverse or modify in whole or in part any decision, determination or requirement of the Planning Commission, but before granting any appealed petition which was denied by the Planning Commission, or before changing any of the conditions imposed by the Planning Commission, the City Council shall set the matter for hearing and give the same notice as that provided for in Section 11.78.090 of this title.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1924)