Chapter 23.143 — Variance

This chapter allows variances from the development standards of this zoning code only when, because of special circumstances applicable to the property, including location, shape, size, surroundings, topography, or other physical conditions, the strict application of the standards denies the property owner privileges enjoyed by other property owners in the vicinity in the same zoning district. (Ord. 27-2008 § 1 (Exh. A § 1.15.010); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

A variance may be granted to waive or modify any requirement of this zoning code, except to:

• A. Allow a land use not otherwise permitted in the zone;

• B. Increase the maximum allowed residential density;

• C. Waive a specific prohibition (e.g., prohibited sign);

• D. Waive or significantly reduce parking requirements; or

• E. Waive or modify a procedural requirement.

(Ord. 27-2008 § 1 (Exh. A § 1.15.020); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

An application for a variance shall be filed in accordance with RCMC § 23.110.040 (Application requirements). (Ord. 4-2017 § 3 (Exh. B))

Variances are a discretionary decision of the council pursuant to RCMC § 23.104.030 (Recommending and approval authority). (Ord. 4-2017 § 3 (Exh. B))

A public hearing and hearing notice shall be required for review and processing of a variance in accordance with the following:

• A. Public Hearing Notice. A notice for public hearing shall be provided for pursuant to RCMC § 23.110.120 (Notice of public hearing).

• B. Public Hearing Procedure. A public hearing shall be held pursuant to RCMC § 23.110.130 (Public hearing procedures). (Ord. 4-2017 § 3 (Exh. B))

The notice of decision shall be issued pursuant to RCMC § 23.110.140 (Notice of decision). (Ord. 4-2017 § 3 (Exh. B))

The approval authority may approve or approve with conditions an application for a variance after finding all of the following. If the approval authority does not make all of these findings, the variance shall not be approved, except as otherwise specified under RCMC § 23.143.075 (Approval findings for off-street parking variance).

• A. There are special circumstances applicable to the property (e.g., location, shape, size, surroundings, topography, or other conditions), so that the strict application of this zoning code denies the property owner privileges enjoyed by other property owners in the vicinity and within the same zoning district.

• B. Granting the variance is necessary for the preservation and enjoyment of substantial property rights enjoyed by other property owners in the same vicinity and zoning district and denied to the property owner for which the variance is sought.

• C. Granting the variance will not adversely affect the interests of the public or the interests of residents and property owners in the vicinity of the premises in question.

• D. The variance is consistent with the General Plan, any applicable Specific Plan, or development agreement. (Formerly 23.143.040; Ord. 27-2008 § 1 (Exh. A § 1.15.040); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

In the case of a nonresidential development project proposing to locate a portion of the required parking in an off-site location or provide in-lieu fees or facilities instead of the required on-site parking spaces, the approval authority shall first make both of the following findings, as required by Government Code Section 65906.5 , instead of those required under RCMC § 23.143.070 (Approval findings):

• A. The variance will be an incentive to, and a benefit for, the nonresidential development.

• B. The variance will facilitate access to the nonresidential development by patrons of public transit facilities. (Ord. 4-2017 § 3 (Exh. B))

In approving a variance, the approval authority:

• A. Shall impose conditions to ensure that the variance does not grant special privileges inconsistent with the limitations on other properties in the vicinity and zoning district in which the property is located.

• B. May impose any reasonable conditions (e.g., the placement, height, nature, and extent of the use, buffers, landscaping and maintenance, off-site improvements, performance guarantees, screening, surfacing, hours of operation) to ensure that the approval complies with the findings required by this chapter.

(Formerly 23.143.050; Ord. 27-2008 § 1 (Exh. A § 1.15.050); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

Appeals of a variance may be filed in accordance with RCMC § 23.110.160 (Appeals). (Ord. 4-2017 § 3 (Exh. B))

Variances shall expire three years from the date of approval, unless:

• A. Substantial construction of the permitted use has commenced and is diligently pursued to completion; clear documentation is provided to establish that the variance holder has made a good faith effort to commence work upon the use; the permitted use has clearly been established; or actual occupancy of an existing building or land occurs under the terms of the permitted use.

• B. An extension is filed for and approved in accordance with RCMC § 23.110.070 (Extension of land use entitlement).

Notice of expiration of a variance shall be issued to permit holder in writing at least 10 days prior to the expiration becoming final. The permit holder may make a written request for a hearing before the director to challenge the expiration. Such hearing must be held prior to the final expiration date, unless an extension is granted by the director. Director decisions following the hearing are final. (Ord. 4-2017 § 3 (Exh. B))

An applicant may request an amendment to a variance after the final written decision is issued. Amendments shall be processed in accordance with RCMC § 23.110.180 (Amendments).

(Ord. 4-2017 § 3 (Exh. B))