18.90.030 Variances.
(a) Purpose. The development standards in this title are designed to protect the public health, safety and welfare by establishing setbacks, maximum building heights and other development standards that apply to various uses. Variances may be granted for land or development with unique characteristics; and provided, that the intent and purpose of the development standards are maintained.
(1) Setbacks. The purpose of setbacks is to provide spacing between buildings to:
a. Provide the occupants with light.
b. Provide air flow between buildings to prevent the transmission of odors.
c. Provide visual and auditory privacy.
d. Provide access to the outside of building faces for maintenance.
e. Prevent the spread of fire between buildings.
f. Give first responders access to the exterior of buildings and undeveloped areas of the property.
g. Provide space for the installation of utilities.
h. Provide for exterior access to undeveloped parts of the property.
i. Provide areas for landscaping.
j. Reduce the potential for drainage impacts between properties.
(2) Height Limits. Height limits restrict the maximum height of buildings and structures to:
a. Prevent the blockage of views.
b. Ensure first responder access to the topmost floor of the building from outside.
c. Prevent hazards to aviation.
d. Ensure compatibility with overhead utilities such as power and communication.
e. Help prevent the erection of structurally unsound buildings and structures.
(3) Maximum Lot Coverage. The maximum degree to which a lot can be developed with buildings is limited to:
a. Prevent the construction of buildings of a mass that far exceeds the scale of nearby buildings.
b. Allow sufficient room for the provision of utilities and the placement of on-site wastewater disposal system.
(4) Parking. Off-street parking and loading is required to be made available at minimum levels when a property is put to use to:
a. Provide for convenience of access to the occupants and users of the property.
b. Reduce the need to construct public parking.
c. Prevent the blockage of roadways.
d. Enhance the viability of commercial enterprises by ensuring customers have easy access to the products and service the business provides.
e. Enhance the viability of surrounding businesses by reducing demand on public parking used by patrons who visit multiple businesses in a single trip.
(b) Minor Variances.
(1) Applicability. A request to vary all quantifiable standards contained in this title, except for those related to off-street parking standards, by less than 10 percent may be considered a minor variance.
(2) Application. To be considered complete, an application for a minor variance must meet the standards below:
a. A completed variance application on a form provided by the planning department; and
b. A complete zoning permit application as contained in KGBC 18.90.020; and
c. In the case of undeveloped properties: an accurate site plan, drawn to scale, depicting the perimeter of the property including dimensions thereof, significant natural features, and all proposed improvements to include parking and driveways; and
d. In the case of properties containing buildings or structures requiring a zoning permit: (1) an unmodified as-built survey meeting the standards contained in KGBC 18.90.020(f); and (2) an accurate site plan, drawn to scale, depicting the perimeter of the property including dimensions thereof, significant natural features, and all existing and proposed improvements to include parking and driveways.
(3) Upon written request of the applicant, a minor variance may be processed under the procedures for a major variance contained in subsection (c) of this section.
(4) Fees. Application fees for minor variances shall be as provided for in KGBC 2.105.030.
(5) Upon receipt of an application for a minor variance, the zoning official shall examine said application and, within 10 days of receipt, notify the applicant of the deficiencies found in the application, or schedule the application for public notice.
(6) Approval Authority. Minor variances are granted, or referred to the planning commission for a public hearing, by the zoning official.
(7) The zoning official shall render a decision within 30 days of the filing of a complete application for a minor variance. As express conditions precedent to the granting of any minor variance the zoning official must determine in writing that:
a. The variance will not reduce the quantifiable standard for which the variance is sought by more than 10 percent; and
b. The variance sought will not reduce off-street parking requirements; and
c. The variance will not permit a land use in a district in which that use is prohibited; and
d. Public notice did not result in a request to remand the variance to the planning commission in a timely manner.
(8) Within 10 days of the decision, written notice of the request shall be made in accordance with the standards set forth in KGBC 18.90.060(b). The notice shall contain a general description of the request, the location of the affected property and the method by which a decision by the planning commission can be requested.
(9) Upon written request by the applicant or any other person notified in subsection (b)(7) of this section within 15 days of distribution of the notice of request, the variance request shall be referred to the planning commission for processing in the same manner as a major variance request in accordance with subsection (c) of this section.
(10) Unless a request to refer the matter to the planning commission for formal consideration under subsection (c) of this section is filed with the zoning official within 15 days of the date of distribution, the decision becomes final.
(11) Appeals to the Planning Commission. Decisions by the zoning official on the grant or appeal of a minor variance may be appealed to the planning commission according to the procedures set out in KGBC 18.90.070.
(c) Major Variances.
(1) Applicability. A request to vary quantifiable standards by more than 10 percent and all variances to parking standards shall be processed and reviewed as a major variance.
(2) Approval Authority. The planning commission may authorize major variances from the requirements of this title, when the criteria contained in subsection (c)(7)(e) of this section are met.
(3) Application. To be considered complete, an application for a major variance must meet the standards below:
a. A completed variance application on a form provided by the planning department; and
b. A complete zoning permit application as contained in KGBC 18.90.020; and
c. In the case of undeveloped properties: an accurate site plan, drawn to scale, depicting the perimeter of the property including dimensions thereof, significant natural features, and all proposed improvements to include parking and driveways; and
d. In the case of properties containing buildings or structures requiring a zoning permit: (1) an unmodified as-built survey meeting the standards contained in KGBC 18.90.020(f); and (2) an accurate site plan, drawn to scale, depicting the perimeter of the property including dimensions thereof, significant natural features, and all existing and proposed improvements to include parking and driveways; and
e. The reason for the variance and an explanation of how the variance criteria contained in subsection (c)(7)(e) of this section are satisfied.
(4) Fees. Application fees for variances shall be as provided for in KGBC 2.105.030.
(5) Upon receipt of an application for a major variance, the zoning official shall examine said application and, within 15 days of receipt, notify the applicant of either the deficiencies found in the application, or the date of the meeting at which the request will be heard by the planning commission.
(6) Approval Authority. The planning commission may authorize major variances from the requirements of this title, when the criteria contained in subsection (c)(7)(e) of this section are met.
(7) Procedure.
a. Hearing Scheduled. When the zoning official has determined that the said application meets the requirements of this chapter, they shall forward the completed application to the planning commission for its determination within 60 days of determining the application to be complete, unless such time limit is extended by written consent by the applicant.
b. Public notice shall be as provided in KGBC 18.90.060.
c. From the time of filing such application until the time of such hearing, the application, together with all plans and data submitted, shall be available for public inspection in the office of the zoning official.
d. After the zoning official has duly forwarded the completed application to the planning commission, the planning commission shall study it and shall, within 30 days after the receipt of said application, hold a public hearing whereat it:
1. Shall hear and consider evidence and facts from any person at the public hearing or written communication from any person relative to the matter; and
2. May receive evidence pertinent to the granting or denial of said application according to the standards set forth in subsection (c)(7)(e) of this section.
e. Applicable Criteria. A variance from a quantifiable standard may be granted in accordance with the review procedures provided in this subsection provided the applicant provides evidence that the following standards are met:
1. Special conditions that require the variance are not caused by the person seeking the variance;
2. The variance will not permit a land use in a district in which that use is prohibited;
3. The variance will not solely relieve an inconvenience.
A request for a variance shall be found to be based solely on an inconvenience if an alternative having the same effect is possible without a variance, and would not be complicated by any of the following:
i. Topographical or geological challenges to development; or
ii. Existing development patterns, including building layout, size, and location; or
iii. Irregularities in lot shape that cannot be abated without the acquisition of land from another party.
4. The variance will not solely relieve a pecuniary hardship.
This standard is not met if:
i. An alternative, having the same effect, is possible without a variance, and the alternative would increase the cost of the project by no more than 10 percent; and
ii. No exterior walls of a principal building must be demolished; and
iii. No exterior walls of an accessory building must be demolished, and the value of the building is less than 10 percent of the value of all buildings on the property, or $10,000, whichever is less.
f. If at the said hearing, the planning commission determines that it needs additional information, it may recess said hearing for a period of not more than 30 days, during which time it shall procure or receive such additional information; provided, however, that before it so recesses, it must then and there announce the time and place at which the hearing will be resumed.
g. Within 30 days after the completion of the said hearing, the planning commission shall, in a formal written resolution of the commission, either grant or deny the application, and the planning commission shall make its findings of fact a part thereof.
h. Unless otherwise specified by the planning commission as a condition of approval, any variance approved by the planning commission shall be conditional upon the privilege granted being utilized within six months after the effective date of the variance.
(8) Conditions. Major variances may be granted with conditions to protect the best interests of the surrounding property or neighborhood and to otherwise achieve the purpose of this title. The effective date or duration of a variance may be limited by the planning commission through a condition of approval.
(9) Revocation and Cancellation of Variance. Any major variance granted under this section that is subject to conditions as allowed in subsection (c)(8) of this section may be revoked and canceled by the planning commission for failure to comply with said conditions. Before taking any action toward revoking such variance, however, the planning commission shall first give the owner of the property upon which the variance is granted 20 days’ written notice, by prepaid certified U.S. mail, in advance of the date of hearing, of the subject of the hearing, and of the date, time, and place of the hearing. This notice is complete upon mailing. The planning commission shall thereafter hold the said hearing at the time and place set forth in said notice. The permittee may, at said hearing, present evidence on his own behalf and may cross-examine witnesses. After the planning commission has concluded the said hearing, the planning commission shall make written findings of fact from the evidence presented to it at said hearing supporting the conclusion that the permittee has failed to comply with the conditions of the variance (in cases where the said variance is revoked) or that the permittee has not failed to comply with the conditions of the variance (in cases where the said variance is not revoked). These findings shall be embodied in a formal written resolution of the planning commission. In all revocation proceedings the burden of proof is upon the planning commission.
(10) Appeals to the Board of Adjustment. All appeals to the board of adjustment shall follow, to the extent applicable, the procedure as set forth in KGBC 18.90.070. [Ord. No. 2022, §15 (Exh. A), 7-17-23.]