Chapter 19.66
VARIANCES
Sections:
19.66.020 Criteria for governing application.
19.66.040 Variances for oak tree protection.
19.66.050 Prohibited uses not otherwise allowed.
19.66.080 Time decision is effective.
19.66.090 Administrative variance.
19.66.010 Purpose.
The purpose of this chapter is to set forth criteria and procedures to vary or adopt the strict application of the terms of this title. However, variances may not be granted to vary the use and procedural requirements of this title. (Ord. 1555 § 26, 2009).
19.66.020 Criteria for governing application.
A variance may be approved by the hearing examiner only when it is established that:
(1) Special conditions or circumstances exist which are peculiar to the land such as size, shape, topography or location, not applicable to other lands in the zoning district and that literal interpretation of the provisions of this title would deprive the property owner of rights commonly enjoyed by other properties similarly situated in the same district under the terms of this title;
(2) The special conditions do not result from actions of the applicant;
(3) The granting of the variance does not amount to a rezone;
(4) The variance will not grant a special privilege to the subject property which is denied other lands in the same district;
(5) The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements within the vicinity. (Ord. 1803 § 1, 2017; Ord. 1555 § 26, 2009).
19.66.030 Excluded factors.
The following matters shall not be considered:
(1) The special circumstances of the applicant such as the fact that the applicant cannot afford to comply with the code;
(2) That a more profitable use of the property is possible with a variance. (Ord. 1555 § 26, 2009).
19.66.040 Variances for oak tree protection.
The goal of this section is to provide no net loss or gain in buildable area when oak trees are present and allow for design flexibility. In order to further the goals of Chapter 20.16 OHMC, the following variances may be allowed under the zoning code:
(1) Setbacks. A variance may be granted to allow intrusion of a building into a setback yard to preserve an oak tree located elsewhere on the property.
(2) Parking. Parking requirements may be reduced by two vehicles per oak tree preserved on the property. In no event shall there be less than one space per dwelling unit. (Ord. 1803 § 1, 2017; Ord. 1555 § 26, 2009).
19.66.050 Prohibited uses not otherwise allowed.
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 a conditional use, permitted in the district involved or any use expressly or by indication prohibited by terms of this title in said district. Therefore, under no circumstances shall the hearing examiner 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 said district. (Ord. 1555 § 26, 2009).
19.66.060 Minimum variance.
Upon finding a variance is necessary, the hearing examiner shall authorize the minimum variance from the zoning code provisions necessary to allow the owner the rights enjoyed by other properties in the vicinity with the same zoning. (Ord. 1555 § 26, 2009).
19.66.070 Conditions.
In granting any variance, the hearing examiner may condition approval on appropriate conditions and safeguards which will mitigate the variance impact on the lands in the vicinity and which further the purposes and provisions of this zoning code. (Ord. 1555 § 26, 2009).
19.66.080 Time decision is effective.
The decision of the hearing examiner granting or denying a variance shall not become final until the expiration of 10 days from the date of action by the hearing officer, unless the officer shall find that the making of the decision effective immediately is necessary for the preservation of property or personal rights and shall so certify on the record of the request for a conditional use permit. If a building permit and/or occupancy permit is not obtained for the subject property within six months from the date of the hearing officer’s decision, the variance shall be canceled and automatically become null and void. The decision of the hearing examiner shall be final, subject to review by the superior court. (Ord. 1555 § 26, 2009).
19.66.090 Administrative variance.
(1) The following variances are minor and may be approved by the director under Chapter 19.48 OHMC to achieve the purpose of the site plan review process:
(a) Up to five percent reduction in lot area, setbacks and lot width from the amount required in the zoning district in which the subject property is located;
(b) Up to five percent increase in lot coverage and building heights from the amount required in the zoning district in which the subject property is located.
(2) No variance shall be approved by the director which will allow an increase in the number of dwelling units on a parcel or which will permit the reduction in area of any lot created after the effective date of the ordinance codified in this chapter.
(3) Prior to approval of an administrative variance, the director shall determine that the granting of the variance will not be significantly detrimental to the public health, safety and welfare, or injurious to nearby property or improvements. (Ord. 1803 § 1, 2017; Ord. 1555 § 26, 2009).