Chapter 17.88
VARIANCES
Sections:
17.88.030 Variance process type.
17.88.040 Action of the review authority.
17.88.010 Purpose and intent.
The purpose of a variance is to provide relief in cases where the strict application of the development standards in this title would result in the deprivation of privileges enjoyed by others in the same district. The intent is to ensure that because of unique physical characteristics of a property, such as topography, soils, or dimensions, that the property is not rendered unusable. (Ord. 1160 NS § 1, 1997).
17.88.020 General provisions.
A. A variance may be requested and granted for variations to the development standards, such as setbacks, lot dimensions, height or parking. Under no circumstances shall the zoning board of adjustment grant a variance to allow a use not permissible in the district.
B. No nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance. (Ord. 1278 NS § 4, 2002; Ord. 1160 NS § 1, 1997).
17.88.030 Variance process type.
A variance shall be subject to a Type II or Type III review as follows:
A. The Type II procedure shall be used to process a minor variance request involving a reduction or increase of 10 percent or less from a quantitative provision of this title.
B. The Type III procedure shall be used to process a major variance for any request not covered by a minor variance. (Ord. 1324 NS § 7, 2004; Ord. 1160 NS § 1, 1997).
17.88.040 Action of the review authority.
A. A variance request may be approved in whole or in part, with or without conditions, if all of the following findings of fact can be made in an affirmative manner:
1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not generally applicable to other lands, structures, or buildings in the same district;
2. That literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this title;
3. That the special conditions and circumstances do not result from the actions of the applicant;
4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings in the same district;
5. The granting of the variance will be in harmony with the general purpose and intent of this title, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare;
6. That the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.
B. A variance request for development within the FM overlay district may be approved in whole or in part, with or without conditions, if all of the following findings of fact can be made in an affirmative manner:
1. Denial of the variance would result in exceptional hardship and would deny all economic use of the property.
2. If the nonresidential site is located in a designated floodway, no increase in flood levels during the base flood discharge would result.
3. Granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, or conflict with existing local laws or ordinances.
4. The variance would result in the minimum relief necessary, considering the flood hazard.
5. In the case of the reconstruction of a structure listed on the National Register of Historic Places or the State Inventory of Historic Places, the structure is being rebuilt as it previously existed.
C. In granting any variance, the review authority may prescribe appropriate conditions and safeguards in conformity with this title. Violation of such conditions and safeguards, when made a part of the terms under which the variance was granted, shall be deemed a violation of this title and punishable under Chapter 17.124 CMC. (Ord. 1594 NS § 4, 2017; Ord. 1160 NS § 1, 1997).
17.88.050 Time limits.
Authorization of a variance shall be valid one year from the effective date, and shall lapse at that time unless a building permit has been issued and substantial construction has taken place or the use has commenced. However, a written request for up to a one-year extension submitted prior to the expiration date may be approved by the administrative official if the administrative official finds that the facts on which the variance was approved have not changed substantially. (Ord. 1160 NS § 1, 1997).