Chapter 17.132
VARIANCES
Sections:
17.132.020 Planning commission authority.
17.132.050 Action by commission.
17.132.080 Limitation on new application.
17.132.090 Violation of conditions.
17.132.110 Variance to run with the land.
17.132.010 Purpose.
Where practical difficulties, unnecessary hardships and results inconsistent with the general purposes of this code may result from the strict application of certain provisions thereof, variance may be granted as provided in this chapter. This chapter may not be used to allow a use that is not in conformity with the uses specified in this code for the district in which the land is located. In granting a variance, the city may impose conditions similar to those provided for conditional uses to protect the best interests of the surrounding property, the neighborhood or the city as a whole. [Ord. 89-O-446 § 1.]
17.132.020 Planning commission authority.
The planning commission shall have the authority to approve, approve with conditions or disapprove any proposed variance. The planning commission may, but shall not be required to, act upon the proposed variance at the meeting in which the applicable public hearing is held; provided, however, that disposition shall be made of the matter within 40 days of the date of the applicable public hearing; provided, further, that nothing shall prohibit the planning commission from, by motion, postponing disposition to definite time. [Ord. 89-O-446 § 1.]
17.132.030 Applications.
The property owner or his authorized agent may make application for a variance from the provisions of this code by filing an application, on a land use application form, with the city manager or his designee for review by the site plan committee pursuant to BMC 17.80.030(B). Upon clearance from the site plan committee, the application will be scheduled for the next available planning commission hearing. Such application shall be accompanied by the following information:
A. A filing fee in the amount established by general resolution of the city council (no part of which is refundable);
B. A legal description of the property;
C. Plans and elevations necessary to show the proposed development;
D. A map (Curry County assessor’s plat) showing the subject property, surrounding properties and the names and addresses of current property owners within 250 feet of the subject property;
E. A statement, plans and supportive evidence that all of the following conditions exist:
1. Exceptional or extraordinary conditions applying to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size or shape, topography or other circumstances over which the applicant has no control, and to which the applicant has not contributed;
2. The variance is necessary for the preservation of the property right of the applicant substantially the same as is possessed by owners of other property in the same zone or vicinity;
3. The authorization of the variance shall not be materially detrimental to the purpose of this code, be injurious to property in the same zone or vicinity in which the property is located or be otherwise detrimental to the objectives of any city development plan or policy;
4. The variance request is the minimum variance from the provisions and standards of this code which will alleviate the hardship. [Ord. 93-O-446.N § 4; Ord. 89-O-446 § 1.]
17.132.040 Burden of proof.
In order for the planning commission to grant a variance, all the conditions and circumstances listed in BMC 17.132.030(A), (B), (C), (D), and (E) must be found to exist. The specific findings by the planning commission in granting a variance must be factual and supported by substantial evidence. The burden of producing substantial evidence to support the requisite findings is on the applicant seeking the variance from the provisions of this code. If no evidence is produced concerning any or all of the findings listed in BMC 17.132.030 (A), (B), (C), (D), and (E), the application must be denied based upon improper or inadequate findings. All evidence produced must be recited in the findings for approval of any variance application. [Ord. 93-O-446.N § 4; Ord. 89-O-446 § 1.]
17.132.050 Action by commission.
A. Within 60 days after the filing of the application, a public hearing shall be held and the commission shall render its decision.
B. Where the planning commission is of the opinion that said proposed variance shall be granted, it shall, in open public meeting, by a majority of its members in attendance, enter a planning commission order granting the variance, which order shall include the specific findings of fact, conclusions and supportive evidence pertaining to each specific condition and circumstance that exists pursuant to BMC 17.132.030(A), (B), (C), (D), and (E).
C. Entry of Order. The chairman, or in his absence, the officer presiding over the planning commission meeting in which the above described order is enacted, shall forthwith sign the order and cause the same to be filed with the city recorder, the order shall be in full force and effect. An order denying the variance shall be entered and filed in a like manner, with the necessary findings, where the planning commission, based on the standards specified herein, determines that the variance should not be granted.
D. In granting a variance, the planning commission may impose such conditions or limitations as it deems reasonably necessary to serve the public purposes of this code. The variance shall not be effective if any such express condition is not fulfilled or is violated or if the activity of the applicant exceeds any express limitation in the variance. It shall be unlawful for any person to cause or permit the use of any property in violation of the express conditions or limitations of any variance granted with respect to such property. [Ord. 89-O-446 § 1.]
17.132.060 Appeal.
Any applicant or any other interested person, firm, or corporation, within 15 days after the decision of the planning commission is filed with the city recorder, and appeal the same to the city council in the manner prescribed in Chapter 17.152 BMC. [Ord. 89-O-446 § 1.]
17.132.070 Effect.
No building or zoning permit shall be issued in any case where a variance is required until 15 days after the decision of the planning commission is filed with the city recorder, and then only in accordance with the terms and conditions of said approval. An appeal from the action of the commission shall automatically stay the issuance of the building or other permit until such appeal has been completed and the council has acted thereon. In the event the council acts to grant said variance, the building or zoning permit may be issued immediately thereafter, in accordance with such terms and conditions as may have been imposed upon said variance. [Ord. 89-O-446 § 1.]
17.132.080 Limitation on new application.
In the case where an application is denied by the planning commission, or denied by the city council on appeal from the planning commission, unless specifically stated to be without prejudice, it shall not be eligible for resubmittal for a period of one year from the date of said denial unless, in the opinion of the planning commission, new evidence is submitted or conditions have changed to an extent that further consideration is warranted. [Ord. 89-O-446 § 1.]
17.132.090 Violation of conditions.
A. The planning commission, on its own motion, may revoke any variance for noncompliance with conditions set forth in the granting of said variance after first holding a public hearing and giving notice of such hearing as provided in BMC 17.132.050 through 17.132.070. The foregoing shall not be the exclusive remedy.
B. If an established time limit for development expires and no extension has been granted, the variance shall be considered void. [Ord. 89-O-446 § 1.]
17.132.100 Mapping.
Within 30 days after the entry of the variance order, the permit application file number shall be indicated on the officially adopted zoning map on the lot or lots affected by such variance permit. [Ord. 89-O-446 § 1.]
17.132.110 Variance to run with the land.
A variance granted pursuant to the provisions of this section shall run with the land and shall continue to be valid upon a change of ownership of the site or structure which was the subject of the application, except as otherwise provided in this section. [Ord. 89-O-446 § 1.]