Chapter 17.104
USE PERMITS AND VARIANCES
Sections:
17.104.020 Authority of planning commission and community development director.
17.104.040 Notice and public hearing.
17.104.050 Duties of planning commission and community development director.
17.104.070 Conditions of approval.
17.104.080 Effective date – Appeals.
17.104.090 Lapse and renewal – Transferability – Discontinuance – Revocation.
17.104.100 Changed plans – New application.
17.104.110 Temporary use permits.
17.104.010 Purposes.
This chapter provides the flexibility in application of land use and development regulations necessary to achieve the purposes of this title by establishing procedures for approval, conditional approval, or disapproval of use permit and variance applications.
Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area.
Variances are intended to resolve practical difficulties or unnecessary physical hardships that may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site. Cost to the applicant of strict compliance with a regulation shall not be the sole reason for granting a variance.
Variances may be granted with respect to fences, walls, landscaping, screening, site, area, site dimensions, yards, height of structures, courts, distances between structures, open space, signs, off-street parking and off-street loading, frontage, and performance standards.
Authorization to grant variances does not extend to use regulations because the flexibility necessary to avoid results inconsistent with the land use objectives of this title is provided by the use permit process for specified uses and by the authority of the planning commission to determine whether a specific use belongs within one or more of the use classifications listed in Chapter 17.16 BMC. (Ord. 87-4 N.S., 1987).
17.104.020 Authority of planning commission and community development director.
A. Planning Commission. The planning commission shall approve, conditionally approve, or disapprove applications for use permits or variances subject to the general purposes of this title, the specific purposes of the base or overlay zoning district in which a development site is located, and the provisions of this chapter, unless authority for a decision on a use permit is specifically assigned to the community development director in the individual chapters of this title.
B. Community Development Director.
1. The community development director shall approve, conditionally approve or disapprove applications for variances related to single-family residences subject to the general purposes of this title, the specific purposes of the base or overlay zone in which a development site is located, and the provisions of this chapter.
2. The community development director may refer any application to the planning commission for review and final decision. (Ord. 22-03 § 15; Ord. 92-15 N.S. § 15, 1992; Ord. 87-4 N.S., 1987).
17.104.030 Initiation.
Applications for use permits and variances shall be initiated by submitting the following materials to the planning department:
A. A completed application form, signed by the property owner or authorized agent, accompanied by a fee established by city council resolution, plans and mapping documentation in the form prescribed by the community development director;
B. A map showing the location and street address of the development site and all lots within 300 feet of the boundaries of the site; and
C. A list, drawn from the last equalized property tax assessment roll, showing the names and addresses of the owners of record of each lot within 300 feet of the boundaries of the site. This list shall be keyed to the map required in subsection (B) of this section. (Ord. 17-10 § 21; Ord. 87-4 N.S., 1987).
17.104.040 Notice and public hearing.
A. Public Hearing Required. The planning commission or the community development director, as the case may be, shall hold a public hearing on an application for a use permit or variance.
B. Time of Hearing. Within three working days after acceptance of a completed application, the community development director shall set a time and place for a public hearing to be held within 60 days.
C. Notice. Notice of the hearing shall be given in the following manner:
1. Posted Notice. Notices shall be posted at least 10 days prior to the hearing on the site of the project.
2. Mailed or Delivered Notice. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 500 feet of the boundaries of the site, as shown on the last equalized property tax assessment roll.
D. Contents of Notice. The notice of public hearing shall contain:
1. A description of the location of the development site and the purpose of application;
2. A statement of the time, place and purpose of the public hearing;
3. A reference to application materials on file for detailed information; and
4. A statement that any interested person or an authorized agent may appear and be heard.
E. Multiple Applications. When applications for multiple use permits or variances on a single site are filed at the same time, the community development director shall schedule a combined public hearing. (Ord. 14-02 § 2; Ord. 87-4 N.S., 1987).
17.104.050 Duties of planning commission and community development director.
A. Public Hearing. The planning commission or community development director, as the case may be, shall conduct the public hearing and hear testimony for and against the application. A public hearing may be continued without additional public notice.
B. Decision and Notice. Within 10 working days of the conclusion of a public hearing, the planning commission or the community development director, as the case may be, shall:
1. Approve, conditionally approve, or disapprove the application;
2. Mail notice of the decision to the applicant and any other party requesting such notice.
C. Limits on Conditions of Approval. Conditions of approval of a use permit shall not include use, height, bulk, density, open space, parking, loading or sign requirements less restrictive than those prescribed by applicable district regulations, except as provided in the following sections of the code: BMC 17.70.180, Exceptions to height limits; BMC 17.70.270, Affordable housing density bonus and other incentives; BMC 17.74.040, Collective provision of parking; BMC 17.74.060, Reduced parking for other uses; Chapter 17.84 BMC, Cannabis; and Chapter 9.60 BMC, Cannabis Public Safety License. (Ord. 18-05 § 36; Ord. 92-15 N.S. § 16, 1992; Ord. 89-1 N.S. § 45, 1989; Ord. 87-4 N.S., 1987).
17.104.060 Required findings.
The planning commission or the community development director, as the case may be, shall approve an application for a use permit or variance as it was applied for or in modified form if, on the basis of the application, plans, materials and testimony submitted, the planning commission or community development director finds:
A. For Use Permits.
1. That the proposed location of the use is in accord with the objectives of this title and the purposes of the district in which the site is located;
2. That the proposed location of the conditional use and the proposed conditions under which it would be operated or maintained will be consistent with the general plan and will not be detrimental to the public health, safety, or welfare of persons residing or working in or adjacent to the neighborhood of such use, nor detrimental to properties or improvements in the vicinity or to the general welfare of the city;
3. That the proposed conditional use will comply with the provisions of this title, including any specific condition required for the proposed conditional use in the district in which it would be located.
B. For Variances.
1. That because of special circumstances or conditions applicable to the development site, including size, shape, topography, location or surroundings, strict application of the requirements of this title deprive such property of privileges enjoyed by other property in the vicinity and under identical zoning classification;
2. That granting the application will not be detrimental or injurious to property or improvements in the vicinity of the development site, or to the public health, safety or general welfare; and
3. That granting the application is consistent with the purposes of this title and will not constitute a grant of special privilege inconsistent with limitations on other properties in the vicinity and in the same zoning district; and, if applicable,
4. OS District Only. That granting the application is consistent with the requirements of Section 65911 of the Government Code and will not conflict with general plan policies governing orderly growth and development and the preservation and conservation of open space lands. (Ord. 92-15 N.S. § 17, 1992; Ord. 87-4 N.S., 1987).
17.104.070 Conditions of approval.
In approving a use permit or variance, the planning commission or community development director, as the case may be, may impose reasonable conditions necessary to:
A. Achieve the general purposes of this title or the specific purposes of the zoning district in which the site is located;
B. Protect the public health, safety, and general welfare;
C. Ensure operation and maintenance of the use in a manner compatible with existing and potential uses on adjoining properties or in the surrounding area. (Ord 92-15 N.S. § 18, 1992; Ord. 87-4 N.S., 1987).
17.104.080 Effective date – Appeals.
A use permit or variance shall become effective at the end of the appeal period, unless appealed to the city council in the case of a decision by the planning commission, or to the planning commission in the case of a decision by the community development director, as provided in Chapter 1.44 BMC. (Ord. 07-66 § 1; Ord. 92-15 N.S. § 19, 1992; Ord. 87-4 N.S., 1987).
17.104.090 Lapse and renewal – Transferability – Discontinuance – Revocation.
A. Lapse of Approval. A use permit or variance shall lapse two years, or at an alternative time specified as a condition of approval, after its date of approval unless:
1. A building permit has been issued and construction diligently pursued; or
2. A certificate of occupancy has been issued; or
3. The use is established; or
4. The use permit or variance is renewed.
B. Renewal. A use permit or variance may be renewed once for a maximum of one year by the community development director without notice or public hearing if the director determines that the findings made and conditions imposed on the original approval still apply. Application for renewal shall be made in writing prior to the lapse of the original approval, but no more than 120 days prior to that date.
C. Transferability. The validity of a use permit or a variance shall not be affected by changes in ownership, except that use permits for cannabis-related businesses shall not be transferred to new owners and shall be subject to Chapter 17.84 BMC, Cannabis, and Chapter 9.60 BMC, Cannabis Public Safety License.
D. Discontinuance. A use permit or variance shall lapse if the exercise of rights granted by it is discontinued for six consecutive months.
E. Revocation. A use permit or variance that is exercised in violation of a condition of approval or a provision of this title may be revoked, as provided in BMC 17.128.060. (Ord. 18-05 § 37; Ord. 89-1 N.S. § 46, 1989; Ord. 87-4 N.S., 1987).
17.104.100 Changed plans – New application.
A. Changed Plans. A request for changes in the conditions of approval of a use permit or variance, or a change to development plans that would affect a condition of approval, shall be treated as a new application.
B. New Application. If an application for a use permit or variance is disapproved, no new application for the same, or substantially the same, use permit or variance shall be filed within one year of the date of denial of the initial application. (Ord. 87-4 N.S., 1987).
17.104.110 Temporary use permits.
A temporary use permit authorizing certain temporary use classifications, not including cannabis-related businesses or uses, shall be subject to the following provisions:
A. Application and Fee. A completed application form and the required fee shall be submitted to the community development director. The community development director may request any other plans and materials necessary to assess the potential impacts of the proposed temporary use.
B. Duties of the Community Development Director. The community development director shall approve, approve with conditions, or deny an application within two weeks. No notice or public hearing shall be required.
C. Required Findings. The application shall be approved as submitted or in modified form if the community development director finds:
1. That the proposed temporary use will be located, operated, and maintained in a manner consistent with the policies of the general plan and the provisions of this title; and
2. That approval of the application will not be detrimental to property or improvements in the surrounding area or to the public health, safety, or general welfare.
D. Conditions of Approval. In approving a temporary use permit, the community development director may impose reasonable conditions necessary to:
1. Achieve the general purposes of this title and the specific purposes of the zoning district in which the temporary use will be located;
2. Protect the public health, safety, and general welfare;
3. Ensure operation and maintenance of the temporary use in a manner compatible with existing uses on adjoining properties and in the surrounding area.
E. Effective Date – Duration – Appeals. An approved temporary use permit shall be effective on the date of its approval; a disapproval permit may be appealed by the applicant, as provided in Chapter 1.44 BMC. The permit shall be valid for a specified time period not to exceed one year. A temporary use permit shall lapse if not used within the dates approved and may be revoked by the community development director, effective immediately, upon verbal or written notice for violation of the terms of the permit. The community development director may approve changes in a temporary use permit. (Ord. 18-05 § 38; Ord. 07-66 § 2; Ord. 89-1 §§ 47, 48, 1989; Ord. 87-4 N.S., 1987).