San Jose Municipal Code Part 11 Development Variances and Development Exceptions

Pursuant to and in accordance with the provisions hereinafter set forth in this part, the director or the planning commission on appeal may, but shall not under any circumstances be required to, grant the following variances and exceptions:

A. Development variance.

1. Variances hereinafter referred to as "development variances," to the height, number of stories, frontage, setback, coverage, density, area, off-street parking, fencing, loading and landscaping requirements and regulations of this title.

B. Development exception.

1. Certain exceptions, hereinafter referred to as "development exceptions" as follows:

a. Exceptions permitting an incursion by buildings or structures of up to, but not more than, five feet into the rear setback area prescribed by this title, provided, however, that no exception granted hereunder shall permit the vertical projection of any building or structure to be closer than ten feet, measured horizontally, to the rear property line.

b. Exceptions permitting church steeples, church bell towers, church roofs, wireless communication antenna and associated structures which exceed in height the height limitations prescribed in this title; provided, however, that the following exception from these provisions shall apply.

i. Wireless communication antennae that meet the height limitations of Section 20.80.1900 or 20.80.1910, as applicable, shall not be subject to the development exception requirements set forth in this part.

c. Exceptions from the area requirements for a lot or parcel in any residential district having an area of less than three thousand square feet, provided such area is not less than the area of such lot or parcel on March 1, 1977 (or, if the lot was created after March 1, 1977, then as approved by the city) and that no such exception shall permit any diminution in such area and provided further that if such lot or parcel has or is to have a structure or structures thereon, no such exception shall be issued for such lot or parcel unless all such structures are dwelling structures or structures accessory thereto, and all such structures comply with the height and setback requirements of this title. An exception permitted by this subsection may be issued at the same time as an exception provided for in Subsection 1. above.

d. Exceptions to the off-street parking and loading requirements and regulations of this title.

(Ords. 26248, 26761, 27468, 29217, 30190, 30282, 30336.)

Upon finding of an application complete pursuant to this chapter, the director shall review the application and shall set a public hearing on the application.

(Ords. 26248, 29217.)

A. Development variance. Neither the director, nor the planning commission on appeal, shall grant a development variance, except for fencing, unless it is found that:

1. Because of special circumstances uniquely applicable to the subject property, including (but not limited to) size, shape, topography, location, or surroundings, but expressly excluding any consideration of:

a. The personal circumstances of the petitioner; or

b. Any changes in the size or shape of the subject property made or occurring while the subject property was situate in the zoning district in which it is situated at the time of the filing of the petition, regardless of whether such changes were caused by the petitioner or his predecessors in interest, the strict application of the requirements and regulations prescribed in this title and referred to in Section 20.100.1300A., deprives such property of privileges enjoyed by other property in the vicinity of and in the same zoning district as the subject property; and

2. The variance, subject to such conditions as may be imposed thereon, will not impair:

a. The utility or value of adjacent property or the general welfare of the neighborhood; and

b. The integrity and character of the zoning district in which the subject property is situated.

B. Fence variance. Neither the director, nor the planning commission on appeal, shall grant a fence variance unless it is found that:

1. Because of special circumstances uniquely applicable to the subject property, the strict application of the requirements and regulations prescribed in Part 6 of Chapter 20.30 of the title deprives such property of privileges enjoyed by other property in the vicinity of and in the same zoning district as the subject property. The special circumstances to be considered include, but are not limited to, size, shape, topography, location or surroundings of the subject property.

a. In the case of a corner lot, special circumstances to be considered under the subsection above include the fact that the legal front lot line of the corner lot does not serve as the actual front entry into the residence.

b. The fence variance for a side corner lot shall not be granted unless it is found that the fence variance will not result in an adverse impact upon the neighboring properties any differently than if the side corner lot line were the actual front lot line.

2. The fence variance, subject to such conditions as may be imposed thereon:

a. Will not substantially impair the utility or value of adjacent property or the general welfare of the neighborhood; and

b. Will not substantially impair the integrity and character of the zoning district in which the subject property is situated.

C. Development exception. Neither the director, nor the planning commission on appeal, shall grant a development exception unless it is found that the exception, subject to such conditions as may be imposed thereon, will not impair:

1. The utility or value of adjacent property or the general welfare of the neighborhood; and

2. The integrity and character of the zoning district in which the subject property is situated.

(Ords. 26248, 29217.)

Any variance or exception permit issued pursuant to this part may include any conditions reasonably necessary to secure the general purposes of this title. Without limiting the generality of the preceding sentence, such conditions may include time limitations on the commencement of the use of the variance or exception, architectural and site improvement approval, specifications on materials to be used, street right-of-way dedications, street improvements, and revocation for failure to comply with conditions.

(Ord. 26248.)