Chapter 18.66
VARIANCES AND UNUSUAL USES
18.66.000 Chapter Contents
Sections:
18.66.010 Authority.
18.66.020 Variance.
18.66.040 Reasonable Use Exception.
18.66.050 Additional conditions of approval.
18.66.060 Limitation of use.
18.66.080 Unusual uses.
18.66.090 Public Project of Significant Importance.
(Ord. 6426 §52, 2006; Ord. 6356 §7, 2005; Ord. 5517 §1, 1995).
18.66.010 Authority
The Director and Hearing Examiner may grant variances and reasonable use exceptions as set forth in this Chapter following the noticing requirements of Chapter 18.70, Administration – Procedures for Land Use Permits and Decisions. The Director may grant minor variances; a “minor variance” is (1) a variance to setback requirements that would alleviate the need for a Reasonable Use Exception (as provided for elsewhere in this Chapter), or (2) a variance that accompanies an administratively granted Reasonable Use Exception. All other variances may be granted by the Hearing Examiner.
(Ord. 7361 §1, 2023; Ord. 6408 §30, 2006; Ord. 6356 §7, 2005).
18.66.020 Variance
A. A variance is a mechanism that allows the provisions of OMC Title 18 to be varied on a case-by-case basis. The Director or Hearing Examiner may approve a variance only when it is for relief from a dimensional standard when the application of such standard would result in an unusual or unreasonable hardship. Before any variance is granted, the Director (for minor variances) or the Hearing Examiner (for all other variance requests) must find:
1. That the proposed variance will not amount to a rezone or constitute a change in the district boundaries shown on the Official Zoning Map;
2. That because of special conditions and circumstances relating to the size, shape, topography, location, or surroundings of the subject property, the variance is necessary to provide the applicant with use rights and privileges permitted for other properties in the vicinity and in the zone in which the subject property is located;
3. That the special conditions and circumstances do not result from the actions of the applicant;
4. That granting of the variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property is located;
5. That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated; and
6. That the variance is the minimum variance necessary to provide the rights and privileges described above.
(Ord. 7361 §2, 2023; Ord. 6356 §7, 2005; Ord. 6273 §32, 2003; Ord. 5517 §1, 1995).
18.66.040 Reasonable Use Exception
Applicability and Intent. A reasonable use exception is a unique type of variance that pertains to the regulations within the Critical Area Ordinance (OMC 18.32); a reasonable use exception is available when compliance with critical area regulations would result in depriving the property owner of even minimal economic use to which a property owner is entitled under applicable state and federal constitutional provisions. A reasonable use exception is intended as a last resort, when all municipal code provisions are exhausted. Before any reasonable use exception may be granted, the Director (for development proposals with buffer reductions of less than 75%) or the Hearing Examiner (for all other applications) must find that the application meets all of the following criteria:
A. The application of OMC 18.32, the Critical Area Ordinance would deny all reasonable economic use of the property;
B. No other reasonable economic use of the property would have less impact on any critical area;
C. The use proposed is the minimum necessary to allow for reasonable economic use of the property. Project plans must demonstrate:
1. Other development alternatives do not result in less impact to the critical area. An alternatives analysis must address: a change in use, reduction in project size, and variances for setback and other development standards; and,
2. Impervious surface coverage should be the minimum necessary and should not exceed 2,500 square feet;
D. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant or the applicant’s predecessor(s), after the effective date of the Critical Area Ordinance (June 5, 2005);
E. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;
F. The design maximizes protection and mitigates impacts to any critical area functions and values consistent with the best available science, and must be supported by critical area reports demonstrating compliance to OMC 18.32, including mitigation sequencing; and
G. The proposal is consistent with other applicable regulations and standards.
H. In addition to meeting the conditions in A) through G); above, an applicant who requests a 75% or greater reduction in critical area buffers or requests to develop within a critical area itself, or requests both, must meet the conditions in 2) or 3) below, and such request must be approved by the Hearing Examiner.
1. Definitions: (for purposes of this subsection H):
a. “Single ownership” means not owned (or previously owned) by a person or entity who concurrently owns (or owned) one or more adjacent lots, tracts, or parcels.
b. “Common ownership” means owned (or previously owned) by a person or entity who concurrently owns (or owned) one or more adjacent lots, tract, or parcels.
c. “Undevelopable” means all reasonable economic use of the property is denied by applicable City regulations.
d. “Adjacent” means two or more parcels sharing a common boundary of at least one point. Parcels across unopen (unimproved) or vacated (by statute or otherwise) Rights of Way are adjacent.
2. The property is or has been in single ownership (i.e., not owned by a person or entity who concurrently owns or owned one or more adjacent lots, tracts, or parcels) continuously since the adoption of the Critical Area Regulations; or
3. The property:
a. Is or was at any time since adoption of the Critical Area Ordinance (June 5, 2005) in common ownership (i.e., the property is or was owned by a person or entity who concurrently owns or owned one or more adjacent lots, tracts, or parcels at some time since June 5, 2005); and
b. Did not become undevelopable solely by reason of passing out of common ownership and into single ownership, by sale or other transfer.
4. Should the Reasonable Use Exception be granted, the adjacent lots, parcels, tracts determined to be held in common ownership must be legally consolidated into a single parcel prior to building permit issuance.
(Ord. 7361 §3, 2023; Ord. 6426 §53, 2006; Ord. 6356 §7, 2005).
18.66.050 Additional conditions of approval
Before granting a variance or reasonable use exception, the Hearing Examiner, or Director as appropriate, may prescribe appropriate conditions and safeguards that will ensure that the purpose and intent of this Title are not violated. Violation of such conditions and safeguards when made part of the terms under which the variance or reasonable use exception is granted, is a violation of this Title and punishable under Chapter 18.73, Civil and Criminal Penalty.
(Ord. 7361 §4, 2023; Ord. 6356 §7, 2005; Ord. 5517 §1, 1995).
18.66.060 Limitation of use
With respect to uses of land, buildings and other structures, this Title is declared to be a definition of the public interest by the City Council, and the spirit of this Title will not be observed by any variance which permits a use not generally or by conditional use, permitted in the district involved, or any use expressly or by implication prohibited, by the terms of this Title in the district. Therefore, under no circumstances may the Hearing Examiner or Director grant a variance to permit a use not generally or by conditional use permitted in the district involved, or any use expressly or by implication prohibited, by the terms of this Title in the district.
(Ord. 7361 §5, 2023; Ord. 5517 §1, 1995).
18.66.080 Unusual uses
Certain unusual uses, which are not identified in this Title may be allowed by the Hearing Examiner if such use will have no detrimental effect on other properties in the vicinity. In authorizing uses of this type, the Hearing Examiner shall impose limits and conditions necessary to safeguard the health, safety and general welfare of those persons that might be affected by the use. (See Section 18.02.080(B), Interpretations.)
(Ord. 6356 §7, 2005; Ord. 5517 §1, 1995).
18.66.090 Public Project of Significant Importance
A. When a project funded by a public agency, department or jurisdiction is found to be of compelling interest to the citizens of Olympia, it may be designated as a public project of significant importance.
B. Any such designation shall be preceded by a public hearing and shall be done by a resolution of the Olympia City Council.
(Ord. 6356 §7, 2005).