Chapter 17.78
VARIANCES
Sections:
17.78.030 Application – Filing.
17.78.040 Application – Form and contents.
17.78.050 Application – Not in scope.
17.78.060 Application – Filing fee.
17.78.070 Departmental investigation.
17.78.080 Commission public hearing – Date and notice.
17.78.090 Commission public hearing – Decision.
17.78.100 Time limit for development.
17.78.110 Appeal from commission decision.
17.78.120 Council public hearing – Date and notice.
17.78.130 Council public hearing – Decision.
17.78.140 Voiding of variances.
17.78.150 Prior ordinance status.
17.78.160 Variance for minor deviations.
17.78.010 Generally.
When practical difficulties, unnecessary hardships or results inconsistent with the general intent and purpose of this title occur by reason of the strict interpretation of any of its provisions, any property owner may initiate proceedings for consideration of a variance from the provisions of this title. A variance will not be granted to permit a use not permitted in the zone by this title. (1964 Code Appx. A § 12.00.)
17.78.020 Grant conditions.
The commission, before it may grant a variance, shall make a finding that in the evidence presented all four of the following conditions exist in reference to the property being considered:
A. There are exceptional or extraordinary circumstances or conditions applicable to the property involved which do not apply generally to other property in the same vicinity and zone;
B. 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 under like conditions in the same vicinity and zone, and the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the same vicinity and zone;
C. The granting of the variance will not be materially detrimental to the public health, safety, convenience and welfare or injurious to property and improvement in the same vicinity and zone in which the property is located;
D. The granting of such a variance will not be contrary to the objectives of the general plan. (1964 Code Appx. A § 12.00.)
17.78.030 Application – Filing.
Application for a variance shall be filed by the owner of the property for which the variance is sought, or by the authorized representative of the owner. (1964 Code Appx. A § 12.00.)
17.78.040 Application – Form and contents.
Application shall be made to the planning commission on forms furnished by the planning department and shall set forth in detail the reasons for the requested variance, indicating how the conditions set forth in CMC 17.78.020 are satisfied, and shall provide other information as may be prescribed by the commission to assist in determining the validity of the request. The applicant shall verify the petition and the date of verification shall be noted on the petition. (1964 Code Appx. A § 12.00.)
17.78.050 Application – Not in scope.
In cases where the planning department considers the reasons as set forth on the application not all within the scope of the variance or that the application is incomplete, the applicant shall be so informed; whereupon, if the application is filed and the fees are accepted, the application shall be signed by the applicant to the effect that he was so informed. Acceptance of an application does not constitute an indication of approval. (1964 Code Appx. A § 12.00.)
17.78.060 Application – Filing fee.
When the application for a variance is filed, a uniform fee shall be paid for the purpose of defraying the cost incidental to the proceedings.
When the application for a variance is filed, a uniform nonrefundable fee shall be paid for the purpose of defraying the cost incidental to the proceedings.
Such charges and fees to be rendered shall be those which the city council may from time to time determine, fix, and establish by resolution duly and regularly adopted by it. Such charges may be changed by the city council from time to time by resolution and shall respectively be applicable for the respective periods designated or governed by such respective resolutions. (Ord. 1357 § 1, 1977; 1964 Code Appx. A § 12.00.)
17.78.070 Departmental investigation.
The planning department shall investigate the facts bearing on each case to provide information necessary to assure action consistent with the intent and purpose of this title. (1964 Code Appx. A § 12.00.)
17.78.080 Commission public hearing – Date and notice.
A. After an application for a variance is deemed complete, the planning director shall set the matter for a public hearing to be held by the planning commission.
B. Notice of public hearing shall be given in all the following ways, and shall contain the time and place of the hearing and the location and proposed use of the subject property:
1. Notice shall be published in a newspaper of general circulation in the city not less than 10 days before the date set for the hearing;
2. Not less than 10 days prior to the date of any hearing, the planning director shall cause a copy of a notice, containing the time and place of the hearing and the location and proposed use of the subject property, to be mailed to the applicant and to all persons whose names and addresses appear on the latest available assessment roll of the county, or are known to the planning director, as owning property within a distance of 300 feet from the exterior boundaries of the subject property. (Ord. 16-2061 § 9, 2016; Ord. 1471 § 1, 1980; Ord. 1388 § 1, 1978; Ord. 1228 § 2, 1973; 1964 Code Appx. A § 12.00.)
17.78.090 Commission public hearing – Decision.
A. The planning commission shall hold a public hearing on the date and at the time and place specified in the notice.
B. The planning commission shall announce its decision at a regular meeting or scheduled special meeting within 30 days after the conclusion of the hearing. The decision shall approve, conditionally approve or disapprove the application, and shall set forth findings in support of the decision. For approval, the conditions listed in CMC 17.78.020 shall be found.
C. The decision shall within 20 days be filed with the council and a copy thereof shall be mailed to the applicant at the address shown on the application. (Ord. 16-2061 §§ 10, 11, 2016; Ord. 1471 § 1, 1980; 1964 Code Appx. A § 12.00.)
17.78.100 Time limit for development.
The commission, in approving a variance, may set forth in its decision reasonable conditions which shall assure the intent and purpose of this title.
A time limit of 180 days for occupancy or construction shall be assumed unless some other period is established. The commission may grant one extension of time, not to exceed one year from the time limit specified, without a public hearing. Any additional request for an extension of the time limit shall be treated as a new application for a variance. (Ord. 1184 § 1, 1972; 1964 Code Appx. A § 12.00.)
17.78.110 Appeal from commission decision.
The decision of the commission shall become final at 5:00 p.m. on the tenth day next succeeding the date of decision unless, prior to that hour, an appeal to the council is filed in writing in the office of the city clerk.
Appeals may be initiated by:
A. The applicant;
B. An owner of real property, any part of which is located within 300 feet of the external boundaries of the subject property;
C. A member of the city council. If the appeal is initiated by a member of the council, not an applicant or an owner within the meaning of subsection (B) of this section, such initiation of appeal shall not be effective unless approved by a majority of the elected members of the council acting at the next regular meeting of the council following the date of filing such appeal. Such initiation of appeal shall be considered without public hearing or discussion of the merits of the matter by the council;
D. The filing of an appeal within the time limit herein specified shall stay the order of the commission and the issuance of any permits predicated thereon until the council has either acted thereon, as provided in CMC 17.78.130, or until a majority of the council has failed to approve an appeal by a member of the council, whichever date first occurs;
E. The fee for an appeal of the planning commission’s decision shall be 90 percent of the current application fee for a variance, except in subsection (C) of this section, in which case there will be no fee;
F. If the appeal of the permits is approved in whole or part by the city council, the appeal fee will be reimbursed in full. (Ord. 1612 § 2, 1986; 1964 Code Appx. A § 12.00.)
17.78.120 Council public hearing – Date and notice.
A. The hearing date shall be set by the city clerk and shall be held not more than 30 days after the expiration date for the filing of an appeal.
B. Notice shall be given as provided in CMC 17.78.080(B). (1964 Code Appx. A § 12.00.)
17.78.130 Council public hearing – Decision.
A. The city council shall hold a public hearing on the date and at the time and place specified in the notice. The appellant shall present at the hearing information and data in support of the appeal.
B. The council shall, within 30 days after the conclusion of the hearing, sustain, reverse or modify the commission decision by resolution, setting forth the findings listed in CMC 17.78.020.
C. Notification of the council action shall be mailed to the appellant at the address shown on the application. (Ord. 16-2061 § 12, 2016; Ord. 1471 § 1, 1980; 1964 Code Appx. A § 12.00.)
17.78.140 Voiding of variances.
A. The council, with or without a recommendation from the commission, may by resolution, upon notice and hearing as specified herein, void any variance for noncompliance with the conditions set forth in granting the variance. Notice of intent to void specifying the reasons therefor and containing the time and place of the hearing shall be given to the holder of the variance not less than 20 days before the specified hearing date. Notice of public hearing shall be given as provided in CMC 17.78.080(B).
B. Notification of the council action shall be mailed to the holder of the variance and shall include a copy of the council resolution specifying the reasons for voiding the variance.
C. Each variance granted under the provisions of this chapter shall become null and void unless:
1. The construction authorized by the variance has been commenced within 180 days, or such other period as may be established, after the granting of the variance and pursued diligently to completion; or
2. The occupancy of the land or buildings authorized by such variance has taken place within 180 days, or such other period as may be established, after the granting of such variance. (Ord. 1356 § 1, 1977; 1964 Code Appx. A § 12.00.)
17.78.150 Prior ordinance status.
Any variance granted pursuant to any zoning ordinance enacted prior to the effective date of the ordinance codified herein shall be construed to be a variance under this title, subject to all conditions imposed in such variance. Such variance may be voided as provided in CMC 17.78.140. (1964 Code Appx. A § 12.00.)
17.78.160 Variance for minor deviations.
A. When in the public interest and agreed to by the applicant, the designated planning official may, without publishing, posting or mailing of notice and without public hearing, consider and render decisions on variances involving slight modifications in the provisions of this title including, but not limited to, the following:
1. Applications for reduction of lot area, minimum floor area requirements, reduction of size of yards, courts, open areas or landscaped areas by not more than 10 percent of the area required by ordinance;
2. Applications for the increase in the height of fences or walls by not more than 18 inches, except when such fence or wall is located in the required front yard or corner cutback areas;
3. Applications to permit the encroachment of structures or buildings, classified as main buildings, into required yards by permitting such structures or buildings to occupy not more than 20 percent of the required yards if such proposed encroachment is not more than one story in height and does not extend closer than 20 feet to the front lot line, 15 feet to the rear lot line and five feet to a side lot line. If, however, the encroachment is an existing main building, such encroachment may be permitted to a distance no less than three feet from a side lot line;
4. Applications for the increase in sign area or height or sign location by not more than 10 percent of the requirements of this code;
5. Repealed by Ord. 22-15.
B. In granting a minor variance, the designated planning official shall find that all of the conditions listed in subsection (A) of this section exist in reference to the subject property. The designated planning official may impose reasonable conditions and requirements as terms of approval. (Ord. 22-15 § 9, 2022; Ord. 95-1797 § 3, 1995; Ord. 1532 § 1, 1983; 1964 Code Appx. A § 12.00.)
17.78.170 Application fee.
When the application for a minor variance is filed, a uniform nonrefundable fee shall be paid for the purpose of defraying the cost incidental to the proceedings.
Such charges and fees to be rendered shall be those which the city council may from time to time determine, fix, and establish by resolution duly and regularly adopted by it. Such charges may be changed by the city council from time to time by resolution and shall respectively be applicable for the respective periods designated or governed by such respective resolutions. (Ord. 1357 § 1, 1977.)