Chapter 17.62
VARIANCES
Sections:
17.62.020 Granting – Conditions necessary.
17.62.030 Application – Contents.
17.62.040 Application – Filing fee.
17.62.060 Hearing – Planning commission authority.
17.62.070 Hearing – Decision – Planning commission authority.
17.62.080 Hearing – Decision – Majority of the commission.
17.62.090 Decision – Time limit – Failure to act deemed a denial.
17.62.010 Intent.
When practical difficulties, unnecessary hardships, or results inconsistent with the general intent and purpose of these regulations occur through the strict application of the provisions of this title to a parcel or group of parcels affected by a common problem, the planning commission shall have the power to grant, upon such terms and conditions as it deems necessary and proper, variances from the strict provisions of these regulations. A variance shall not be granted to permit a use not permitted in the zone by the provisions of this title. (Ord. 441 § 1, 2000).
17.62.020 Granting – Conditions necessary.
The planning 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. Because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings, the strict application of the provisions of this title would deprive subject property of privileges enjoyed by other properties in the vicinity and under identical zone classification;
B. Any variance granted shall be subject to such conditions as will assure that the adjustment authorized by the planning commission shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which subject property is situated;
C. The granting of the variance will not be materially detrimental to the public health, safety, convenience or welfare, or injurious to property and improvements in the same vicinity and zone in which the project is located; and
D. The granting of such variance will not adversely affect the general plan adopted by the city. (Ord. 441 § 1, 2000).
17.62.030 Application – Contents.
A. Applications for variances shall be filed by the owner, his authorized agent, or a lessee, upon forms provided by the city clerk. Applications shall set forth and state fully the reasons and grounds for the variance and shall contain such information as the planning commission prescribes. The application shall be reviewed for completeness by the city clerk based on the following guidelines:
1. Every application for a variance shall be accompanied by a drawing or plot plan, drawn to scale and showing the lot and building site or sites, the proposed locations of the building or buildings on the lot, accurate dimensions of the buildings, of the yards and of the lot, and such other information as may be necessary to provide for the enforcement of these regulations or the intelligent consideration of the variance request.
2. Environmental documentation as described in Chapter 17.12 HMC shall be prepared.
B. As depicted in Figure 17.62-1 provided at the end of this chapter, if application is deemed incomplete, the application is returned to the applicant. If application is deemed complete, the city clerk shall accept the application. (Ord. 441 § 1, 2000).
17.62.040 Application – Filing fee.
Before accepting an application for a variance, the city clerk shall charge and collect a filing fee. Such fee shall be established by a resolution of the city council. (Ord. 441 § 1, 2000).
17.62.050 Hearing – Notice.
A. As depicted in Figure 17.62-1 provided at the end of this chapter, upon receipt of the application in proper form, the city clerk shall place the item on the planning commission’s agenda for public hearing not more than 30 days after the date the application is determined to be complete.
B. Notice of public hearing shall be given for the time and in the manner as established by resolution of the city council, which shall be either:
1. By mailing said notice postage prepaid at least five days prior to the public hearing to all property owners whose names and addresses appear on the latest adopted tax roll as owning property within a distance of 300 feet from the exterior boundaries of the applicant’s property; or
2. By publication of said notice in an official newspaper of the city and by posting of said notice in a conspicuous place on or close to the property at least 10 days prior to the hearing. (Ord. 441 § 1, 2000).
17.62.060 Hearing – Planning commission authority.
The planning commission shall, on the date set, hold the public hearing upon the application for variance. (Ord. 441 § 1, 2000).
17.62.070 Hearing – Decision – Planning commission authority.
As depicted in Figure 17.62-1 provided at the end of this chapter, from the facts presented with the application at the public hearing, the planning commission may grant the requested variance in whole or in part, with or without conditions, as specified in HMC 17.62.110. If the findings cannot be made, such application shall be denied. (Ord. 441 § 1, 2000).
17.62.080 Hearing – Decision – Majority of the commission.
Every action or decision of the planning commission authorizing a variance from the regulations established in this title shall be by resolution adopted by a majority of its membership. (Ord. 441 § 1, 2000).
17.62.090 Decision – Time limit – Failure to act deemed a denial.
The planning commission shall make its findings and determinations within 30 days from the date of the closing of the hearing of such application and shall within 10 days of its decision mail a notice of its decision to the applicant. The 30-day period may be extended at the request of or with the consent and approval of the applicant. The planning commission’s decision shall be final unless appealed to the city council. The failure of the planning commission to make its findings and determination within the time limit as provided in this chapter or any approved extension shall constitute a denial of such variance by the planning commission as of the last day when the planning commission could have acted upon the application. (Ord. 441 § 1, 2000).
17.62.100 Effective date.
No variance granted or authorized by the planning commission as provided in this chapter shall become effective until after an elapsed period of 10 days from the date of the action authorizing such a variance. (Ord. 441 § 1, 2000).
17.62.110 Conditions.
The following conditions of a variance may be imposed:
A. The planning commission, in approving a variance, may set forth in its decision reasonable terms and conditions that it deems necessary to protect the health, safety, and welfare of the community, and to ensure the intent and purposes of these regulations; and
B. Every variance granted as authorized by this section shall be conditioned upon its privileges being utilized within 180 days after the effective date of the said variance; after such time any privileges shall become null and void, unless the planning commission, in its discretion and with the consent or upon the request of the applicant for any cause, grants a reasonable extension of time. Where the privileges granted involve some form of construction work and such construction has not commenced within the 180-day period due to delays caused by the building inspector in approving plans, the planning commission may also grant a reasonable extension of time. Requests for extension shall be filed with the city clerk prior to the expiration of the 180-day time limit. (Ord. 441 § 1, 2000).
17.62.120 Appeal – Procedure.
A. As depicted in Figure 17.62-1 provided at the end of this chapter, a written appeal may be taken to the city council by the applicant for variance or by any person, firm, corporation, group or association owning real property within 300 feet of variance applicant’s property, aggrieved or affected by the decision of the planning commission with respect to any applicant, within the 30-day limit mentioned in HMC 17.62.090.
B. Such appeals shall be filed in duplicate with the city clerk within 10 days from the date of action by the planning commission or from the expiration of the 30-day period described in HMC 17.62.090.
C. The appeal shall specifically state the grounds for the appeal and how the planning commission failed to conform to the requirements of these regulations.
D. Before accepting an appeal, the city clerk shall charge and collect a fee as determined by resolution of the city council.
E. The city clerk shall immediately transmit one copy of said appeal to the secretary of the planning commission, and if the appeal has been made by someone other than the applicant, one to applicant.
F. Said appeal stays all proceedings in action appealed from until the determination of said appeal as provided in this section.
G. Upon receipt of the appeal, the secretary of the planning commission within 10 days, or by the next regular city council meeting, shall transmit to the city council the original petition and copies of all other papers constituting the record upon which the action appealed from was taken, together with a written report disclosing in which respects the petition for variance and facts offered in support of the action met or failed to meet the qualifications set forth in HMC 17.62.060 through 17.62.110.
H. The city clerk shall place the item on the agenda for city council hearing, which hearing shall not be less than 10 days nor more than 30 days from the date of the receipt of the appeal. The city clerk shall give notice of such hearing in the manner prescribed in HMC 17.62.050.
I. An appeal may be withdrawn at any time prior to the date and time of noticing the public hearing. (Ord. 441 § 1, 2000).
17.62.130 Appeal – Decision.
As depicted in Figure 17.62-1 provided at the end of this chapter, the city council may by resolution reverse, wholly or partly, or may modify any decision, determination or requirement of the planning commission. In doing so, the city council must make a written finding of fact setting forth where the planning commission’s findings were in error and where the property or particular use involved meets or fails to meet the qualifications set forth in HMC 17.62.060 through 17.62.110. Failure of the city council to reverse or modify the decision of the planning commission within 15 days of the date of the closing of the hearing shall constitute affirmation of the planning commission’s decision. A majority vote of the whole of the city council shall be required to grant in whole or in part any appealed petition which was denied by the planning commission. (Ord. 441 § 1, 2000).
17.62.140 Revocation.
A. The revocation of a variance shall have the effect of denying all privileges granted by the variance.
B. The city council, with or without a recommendation from the planning commission, may by resolution and after a public hearing with notice in accordance with HMC 17.62.050 revoke any variance for noncompliance with the conditions set forth in granting such variance. Written notices of intention to revoke shall be mailed to the owners of the property and the occupant of the property not less than 30 days before the city council’s action in the revocation of the variance.
C. If at any time where a variance has been granted, it comes to the attention of the planning commission that erroneous facts or information were presented by the applicant and considered by the planning commission in the granting of said variance, the planning commission shall hold a hearing regarding the said variance. The persons affected by the variance shall be notified of the hearing. If from the evidence presented to the planning commission that erroneous information was in fact presented by the applicant and considered by the planning commission, and that said information naturally affected the decision and judgment of the planning commission in granting the variance, or did materially affect the purpose and intent of the variance, then the planning commission shall recommend to the city council that the variance be revoked. Upon the receipt of such recommendation, the city council may revoke the variance in accordance with subsection B of this section. (Ord. 441 § 1, 2000).
