Article 50.68
Variances.
Sections:
50.68.005 Purpose.
50.68.010 Variance Standards.
50.68.015 Classification of Variances.
50.68.017 Variances Not Allowable; Expiration of Class 3 Variances.
50.68.020 (Repealed).
50.68.005 Purpose.
The purpose of variances is to allow development not in conformance with the requirements of the Community Development Code relating to the property except as provided in LOC 50.68.017.
(Editorial correction, Amended, 02/20/2007, ref. to LOC 50.68.010 corrected to LOC 50.68.017; Ord. 2314, Added, 03/05/2002)
50.68.010 Variance Standards.
1. The reviewing authority may grant a variance from the requirements of this Code, except as expressly prohibited, if it is established that:
a. Class 1 (Minor) Variance Standards.
i. The granting of the variance will not be detrimental to the public health or safety, or materially injurious to properties or improvements within 300 feet of the property.
ii. The proposed development will not adversely affect existing physical and natural systems such as traffic, drainage, Oswego Lake, hillsides, designated sensitive lands, historic resources, or parks, and the potential for abutting properties to use solar energy devices any more than would occur if the development were located as specified by the requirements of the zone.
b. Class 2 Variance.
i. Class 2 Variance Standards.
(1) The request is necessary to prevent unnecessary hardship; and
(2) Development consistent with the request will not be injurious to the neighborhood in which the property is located or to property established to be affected by the request; and
(3) The request is the minimum variance necessary to make reasonable use of the property; and
(4) The request is not in conflict with the Comprehensive Plan.
ii. Class 2 Variance Factors and Considerations.
In evaluating whether a particular request is to be granted, the granting authority shall consider the following, together with any other relevant facts or circumstances:
(1) Relevant factors to be considered in determining whether a hardship exists include:
(A) Physical circumstances related to the piece of property involved.
(B) Whether a reasonable use similar to like properties can be made of the property without the variance.
(C) Whether the hardship was created by the person requesting the variance.
(D) The economic impact upon the person requesting the variance if the request is denied.
(2) Relevant factors to be considered in determining whether development consistent with the request is injurious include:
(A) An analysis of the physical impacts such development will have, such as visual, noise, traffic and the increased potential for drainage, erosion and landslide hazards.
(B) The perceptions of residents and owners of property in the neighborhood concerning the incremental impacts occurring as a result of the proposed variance.
c. Class 3 Variances.
i. The applicant and proposed use meet the qualifications for applicability under a state or federal law that may require the City to waive, adjust, or reasonably accommodate land use regulations.
ii. The requested variance is necessary to comply with state or federal law requirements for adjustment, waiver or reasonable accommodation of land use regulations, e.g., Federal Fair Housing Act; Americans with Disabilities Act; Rehabilitation Act, Religious Land Use and Incarcerated Persons Act.
iii. The variance is the minimum necessary to comply with the applicable state or federal law.
2. A determination of whether the standards set forth in subsection (1)(b)(i) of this section are satisfied necessarily involves the balancing of competing and conflicting interests. The considerations listed in subsections (1)(b)(ii)(1) and (2) of this section are not standards and are not intended to be an exclusive list of considerations. The considerations are to be used as a guide in the granting authority’s deliberations.
(Ord. 2525, Amended, 11/01/2011; Ord. 2398, Amended, 12/06/2005; Ord. 2314, Amended, 03/05/2002; Ord. 2316, Added, 03/05/2002)
50.68.015 Classification of Variances.
A variance which would allow development not in conformance with the requirements of the development standards may be granted.
1. Class 1 (minor) variances are small changes from the Code requirements and which will have little or no effect on adjacent property or users.
Class 1 (minor) variances include:
a. Variance from yard setback requirements for a single-family dwelling, or its associated accessory structure that does not comply with the three criteria set forth in LOC 50.14.005 (5)(a)-(c):
i. 20%, or less, provided the resulting side yard setback is no less than five feet in width; or
ii. (1) The request is the minimum necessary to preserve a tree;
(2) The resulting yard setback is no less than 50% of standard required by the zone; and
(3) Side yards are not reduced to less than five feet.
b. Variance from yard setback requirements for a structure other than those described in subsections (1)(a) of this section of:
i. Two feet or less in side or front yards;
ii. Five feet or less in rear yards: or
iii. (1) The request is the minimum necessary to preserve a tree;
(2) The resulting yard setback is no less than 50% of standard required by the zone; and
(3) Side yards are reduced to not less than five feet.
c. Variances from minimum lot width or depth of 5 feet or less.
d. Variances in lot coverage on lots which have the same boundaries as when platted and which were platted with an area less than the current zoning requirement for single-family residential dwellings and accessory structures of up to and including 15% of the maximum allowed lot coverage.
e. Variances in floor area ratio (FAR) for single family residential development, up to a maximum 15% increase in floor area, subject to the following lot size limitations:
|
Zone |
Minimum Lot Size Required if House Floor Area is to be Adjusted Under Class 1 Variance |
|---|---|
|
R-5 |
10,000 sq. ft. |
|
R-6 |
12,000 sq. ft. |
|
R-7.5 |
15,000 sq. ft. |
|
R-10 |
15,000 sq. ft. |
|
R-15 |
22,500 sq. ft. |
f. Variances from maximum fence or retaining wall height restrictions, pursuant to LOC Article 45.15.
g. Variation to the maximum grade of a private street or driveway.
h. Variances for construction of a dormer that does not exceed the height of the roof ridge in which the dormer is being constructed in an existing single family detached dwelling that is non-conforming relative to lot coverage or setbacks.
i. Variances to distance of driveway from intersections (LOC 50.58.015).
j. Variances to street frontage (LOC 50.57.015).
k. Variances to driveway width for Flag Lots (LOC 50.20.020).
l. Variances for elevated walkway or pathway within setback or yard.
m. Variances to yard requirements for extension of existing nonconforming walls, provided:
i. The square footage of any new encroachment into the setback does not exceed the square footage of the existing non-conforming, encroaching portion of the structure.
ii. The resulting structure complies with the FAR, lot coverage and other setback requirements.
iii. The variance shall not reduce the yard setback by more than 50%.
iv. No previous variance has been granted for an extension of the subject non-conforming wall.
v. The expansion area shall be defined by the extension of two or more existing exterior walls.
n. Variances to dimensional requirements that are necessary due to prior errors in land surveying. Prior errors in land surveying are errors that were made before the applicant acquired the property or gained control of the property.
o. Determination of the Front Yard for Flag Lots (LOC 50.20.025).
p. Limitation on maximum height of solar system (panels). LOC 50.22.015(3).
2. Class 2 variances which are significant changes from the Code requirements and are likely to create impacts on adjacent property or users.
Class 2 variances include:
a. Variances from setback requirements for a single-family dwelling of more than 20% or where the resulting side yard setback is less than five feet in width.
b. Variance from yard setback requirements for an associated accessory structure to a single-family dwelling that does not comply with the three criteria set forth in LOC 50.14.005 (5)(a)-(c), of more than 20%.
c. Variances from the minimum lot width or depth of more than 5 feet.
d. Variances from setback requirements for structures other than those described in subsection (1)(a) of this section of more than 2 feet in side and front yards and more than 5 feet in rear yards or where the resulting side yard setback is less than five feet in width.
e. Variances from the lot coverage or floor area for other than a single-family residential dwelling or its associated accessory structures.
f. Variances to building height.
g. Variance to fence, wall, and retaining wall requirements, other than height.
h. Variances to any other requirement of this Code except as classified as a Class 1 (minor) variance above, and applicable to a development.
3. Class 3 variances are variances to any requirement of this Code required by state or federal law.
4. The City Manager shall decide the classification of any Class 1 or Class 2 variance application. An applicant must specifically designate a request for Class 3 variance in the application.
(Ord. 2525, Amended, 11/01/2011; Ord. 2524, Amended, 06/01/2010; Ord. 2398, Amended, 12/06/2005; Ord. 2333, Amended, 07/15/2003; Ord. 2314, Amended, 03/05/2002; Ord. 2316, Added, 03/05/2002)
50.68.017 Variances Not Allowable; Expiration of Class 3 Variances.
1. No Class 1 or Class 2 variance shall be granted that will permit a use not permitted in the applicable zoning district or that will increase the allowable residential density in any zone.
2. No Class 1 or Class 2 variance to a zone requirement for which an exception was granted pursuant to LOC 50.17.015(2) shall be granted to a lot within a planned development where an exception to the zone requirement was granted from the underlying zone requirements by the planned development overlay approval.
3. No Class 1 or Class 2 variance shall be granted to a setback or buffer required under LOC Article 50.16 (Sensitive Lands Overlay District). This provision does not prevent modification of buffer as permitted by LOC 50.16.070(3), or setbacks as permitted by LOC 50.16.040.
4. Notice of Duration of Class 3 Variances; Expiration.
a. Notice of the condition(s)/event(s) that would terminate the Class 3 variance shall be recorded in the county deed records.
b. Class 3 variances that allow use of a lot not otherwise permitted by this Code but required under state or federal law shall expire upon termination of the occupancy of the lot by the activity, use, or individual/entity qualifying for the use variance under state or federal law.
c. Class 3 variances relating to the placement of the structure, the dimensional standards of the lot, or other variances relating to the structure (other than to the use of the structure) shall expire when the portion of the structure that received the variance is damaged or destroyed and occupancy of the lot by the activity, use, or individual/entity qualifying for the variance under state or federal law has ceased.
[Cross-References: Subsection (2): See LOC 50.17.010 (3) - Modification to Development Permit; LOC 50.86.025 for modification of a lot’s lot area or setback requirements within planned development where any lot’s dimension, lot area, or setback was modified from the underlying zone requirements.]
(Ord. 2525, Amended, 11/01/2011; Ord. 2398, Amended, 12/06/2005; Ord. 2314, Added, 03/05/2002)