Chapter 22.74
VARIANCES
Sections:
22.74.002 Authority – Major and minor variances.
22.74.003 Criteria – Major and minor variance approval.
22.74.004 Application procedures.
22.74.005 Submittal requirements.
22.74.006 Duration of a variance approval.
22.74.007 Limitation on refiling of application.
22.74.008 De minimis variance.
22.74.001 Purpose.
The purpose of this chapter is to provide a means of altering the requirements of this title in specific situations where the strict application of those requirements would deprive a property of privileges enjoyed by other properties with the same zoning district classification because of special features or constraints unique to the subject property. (Ord. 1246 § 23, 2000).
22.74.002 Authority – Major and minor variances.
Two types of variances are established in this chapter, a minor, or administrative variance, and a major, or hearing examiner variance. A minor variance is one that is within 10 percent of the standard contained in this title and which may be approved by the director. A major variance is one that is greater than 10 percent of the standard contained in this title and which may be approved by the hearing examiner.
The appropriate review authority (director or hearing examiner) shall grant a variance from the provisions of this title when it has determined that the criteria listed in FMC 22.74.003 have been met by the proposal. When granting a variance, the review authority may attach specific conditions to the variance to ensure that the variance will conform to the criteria listed in FMC 22.74.003 and all other applicable codes, design guidelines, and comprehensive plan goals and policies. The review authority shall not grant a variance which establishes a use otherwise prohibited within a zoning district. (Ord. 1638 § 49, 2019; Ord. 1246 § 23, 2000).
22.74.003 Criteria – Major and minor variance approval.
(a) Before any major variance may be granted, the review authority shall adopt written findings showing that the following criteria are met by the proposal:
(1) There are special circumstances applicable to the subject property or to the intended use such as size, shape, topography, location, or surroundings that do not apply to other property or classes of use in the same vicinity and zoning classification.
(2) The variance is necessary for the preservation and enjoyment of a substantial property right or use which is possessed by other property in the same vicinity and zoning classification but denied to the subject property because of special circumstances.
(3) The granting of the variance will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zoning classification in which the subject property is located.
(4) Strict enforcement of the provisions of this title would create a practical difficulty or unnecessary hardship for the property owner.
(5) The practical difficulty or unnecessary hardship has not been created by the owner or by a predecessor in title. (This finding does not apply if the zoning classification for the property has changed and the difficulty or hardship was created solely as a result of the reclassification.)
(6) The granting of the variance will be consistent with the purpose and intent of the zoning classification and the comprehensive plan land use designation of the subject property and will not conflict with other applicable codes, design guidelines, or comprehensive plan goals and policies.
(b) Before any minor variance may be granted, the review authority shall adopt written findings showing that the following criteria are met by the proposal:
(1) The variance will not compromise the intent of the comprehensive plan nor be inconsistent with the goals, policies and objectives of the comprehensive plan.
(2) The variance is an immediate remedy to a condition which, if permitted, would not result in any significant adverse impacts to adjacent properties or structures.
(3) A strict application of the standards would impose an unreasonable hardship upon the applicant or property owner.
(4) The need for the variance is not the result of the deliberate actions of the applicant or property owner.
(5) The variance does not create health and safety hazards. (Ord. 1472 § 1, 2009; Ord. 1246 § 23, 2000).
22.74.004 Application procedures.
A minor variance is classified as a Type II application and a major variance is classified as a Type III-A application. The processing procedures for these applications are described in Chapters 22.05, 22.06, 22.07, 22.08, 22.09 and 22.10 FMC. (Ord. 1246 § 23, 2000).
22.74.005 Submittal requirements.
Application for a variance shall be submitted on forms provided by the department. A minimum of two sets of plans, materials and other applicable information specified in FMC 22.06.002 shall be submitted with the application. Based on a preliminary review of the proposal, the director may determine that additional information, including the items listed in FMC 22.72.009 (site plan review submittal requirements), is necessary to complete the review and shall be provided by the applicant. (Ord. 1246 § 23, 2000).
22.74.006 Duration of a variance approval.
In the event that a variance is not exercised within one year from the effective date of approval, it shall automatically become null and void; provided, however, that for good cause, the review authority may grant a one-time extension of one year if an extension request is filed with the department no less than 15 days prior to the date of expiration for a minor variance approval or 45 days prior to the date of expiration for a major variance approval. A properly filed application for a time extension shall stay the effective date of expiration until action on the request has become final. The process for taking action on the request shall be the same used for the original variance application. Before taking action to grant an extension, the review authority shall adopt written findings showing that the following circumstances exist:
(a) The magnitude or extent of the variance originally granted has not increased as a result of subsequently adopted amendments to this title which impose a more restrictive standard.
(b) The findings adopted in support of the original variance request remain valid and supportive of the time extension request. (Ord. 1246 § 23, 2000).
22.74.007 Limitation on refiling of application.
No application for a variance shall be accepted for filing by the director within one year following final action in denying an application for a variance for the same or substantially the same purpose or property. The director shall deem an application to be substantially the same as the variance denied if the special circumstances which the applicant alleges as a basis for a variance are the same or substantially the same as those considered and rejected in the earlier final action. (Ord. 1246 § 23, 2000).
22.74.008 De minimis variance.
A de minimis variance grants a minimal or minor deviation from a bulk or dimensional zoning requirement. Because such variance does not affect the public interest, it may be granted even though the variance criteria in FMC 22.74.003 have not been met. A de minimis variance is classified as a Type I project permit. The director may grant a de minimis variance subject to the following criteria being met:
(a) The deviation being sought does not exceed 12 inches for building height or setback, or one percent for measurements pertaining to lot dimensions or area.
(b) Rigid compliance with the bulk or dimensional zoning requirement is not necessary to protect the public interest or public policy concerns inherent in this title.
(c) A redesign of a proposal to fully comply with the bulk or dimensional zoning requirement would be infeasible or impracticable. (Ord. 1575 § 20, 2016).