Chapter 20.28
VARIANCES
Sections:
20.28.120 Administration of administrative variance.
20.28.130 Procedure for administrative variance.
20.28.140 Requirements for a complete application.
20.28.150 Administrative variances – Definition and criteria for approval.
20.28.160 Administration of quasi-judicial variances.
20.28.170 Procedure for quasi-judicial variance approval.
20.28.180 Quasi-judicial variances – Definition and criteria for approval.
20.28.200 Deadline for final decision.
20.28.100 Purpose.
The purpose of a variance is to provide a means whereby the literal terms of the city’s zoning code need not be applied, if circumstances or conditions not created by, or not within the property owner’s control, have created practical difficulties or unnecessary hardships that undermine the spirit of these regulations or undermine public safety and welfare. A variance cannot authorize a change to an allowed use or required density limitations. In sum, the variance procedures provide relief from specific dimensional standards in the code (e.g., setbacks) when they have the unintended effect of preventing reasonable development in conformance with all other codes. Variances are not favored and are intended to allow relief in circumstances in which the zoning code requirements significantly diminish the value of a specific property. (Ord. 019-17 § 18 (Exh. 1)).
20.28.110 Applicability.
(1) Deviation from Land Use Regulations Only. The variance procedures provided for in this chapter are for the consideration of deviations from only the city’s land use regulations provided for under this title;
(2) Shoreline Variances. For properties located within the city’s shoreline zone, a deviation from the standards and regulations of the city’s shoreline master program requires a separate shoreline variance pursuant to the procedures under Chapter 20.164 POMC;
(3) Exceptions and Modifications Versus Variances. A code standard or approval criterion (“code section”) may be modified without approval of a variance if the applicable code expressly allows exceptions or modifications. If the code section does not expressly provide for exceptions or modifications, then a variance is required to modify that code section and the provisions of this chapter apply;
(4) Types of Variances. There are three types of variances: administrative (1 and 2) and quasi-judicial. The type of variance required depends on the extent of the variance request and the discretion involved in the decision-making process;
(5) Prohibitions. The city will not grant any variance that will allow the establishment of a use which:
(a) Is not otherwise permitted in the zone;
(b) Would result in the extension of a nonconforming use or structure; or
(c) Would change the development regulations in the zone applicable to the subject property;
(6) A variance will not result in violation(s) of any other adopted ordinance or code standard; each code standard to be modified shall require a separate variance request;
(7) An application for an administrative Type 1 variance may only apply to a single lot/parcel or a single identified development project; and
(8) No more than three administrative Type 1 variances may be approved for one lot or parcel. (Ord. 019-17 § 18 (Exh. 1)).
20.28.120 Administration of administrative variance.
The director is authorized and directed to administer the provisions of this chapter relating to administrative variances. There is no public hearing, and after issuance of the final decision, the hearing examiner has the authority to hear and issue a decision on an appeal in an open record hearing. (Ord. 019-17 § 18 (Exh. 1)).
20.28.130 Procedure for administrative variance.
Administrative variance applications are processed pursuant to Chapter 20.24 POMC. (Ord. 019-17 § 18 (Exh. 1)).
20.28.140 Requirements for a complete application.
A complete application for either an administrative or quasi-judicial variance application shall include the items listed below. Refer to the relevant city application form for numbers of copies of each item that must be included and the type of accompanying electronic submittal that is required (if relevant).
(1) Application form. Seven copies of a completed application form (including all supporting documents);
(2) Date, name, address, telephone number and email of the applicant;
(3) Name, address, telephone number and email of the owner of the property identified in the application;
(4) Legal description of the subject property;
(5) Description and photographs of existing site conditions, any plans and/or relevant information to the proposed variance;
(6) A site plan and building elevation drawings of all structures proposed to be developed on the subject property. More specific architectural drawings may be required depending on the content of the variance request;
(7) Identification of all sections of the city’s zoning code from which the applicant seeks the variance and a complete description of the requested variance from such section(s);
(8) Description of any proposed development of the property, applying the proposed variance from the identified code section(s);
(9) An explanation of the rationale for the proposed variance;
(10) The applicant’s narrative statement describing the manner in which the application satisfies the criteria for variance approval in POMC 20.28.150 or 20.28.180 depending on the type of variance;
(11) A SEPA checklist (unless categorically exempt);
(12) Concurrency determination (water, sewer and traffic if applicable);
(13) The application fee established by the city;
(14) Any other required information as indicated by city staff in a preapplication meeting. (Ord. 019-17 § 18 (Exh. 1)).
20.28.150 Administrative variances – Definition and criteria for approval.
(1) Administrative Variance Type 1.
(a) A Type 1 administrative variance is defined as:
(i) Front Yard Setbacks. Up to a 10 percent reduction to the front yard setback standard in the applicable land use zoning district.
(ii) Interior Setbacks. Up to a 10 percent reduction of the dimensional standards for the side and rear yard setbacks required in the applicable land use zoning district.
(iii) Lot Coverage. Up to a 10 percent increase of the maximum lot coverage required in the applicable land use zoning district.
(iv) Landscape Area. Up to a 10 percent reduction in landscape area (overall area or interior parking lot landscape area).
(v) Building Height. Up to a 10 percent increase in maximum building height in the applicable land use zoning district, except within any land use zoning district or overlay district with view protection regulations.
(b) A Type 1 administrative variance may be approved if the applicant demonstrates all of the following:
(i) There is no presumption of validity favoring the action of granting a variance;
(ii) The variance requested is required due to the lot configuration, or other conditions of the site;
(iii) The variance does not require the removal of any trees within a critical area or its buffer, designated greenbelt, or habit conservation area; or it is proposed in order to avoid or reduce impact to floodplains, significant trees, wetlands, or other natural features. Modification of the standard shall not be more than is necessary for the preservation of the natural feature to be preserved or protected;
(iv) The subject property cannot be reasonably used under the city’s land use regulations as written.
(2) Administrative Variance Type 2.
(a) The following Type 2 administrative variances may be approved on individual platted and recorded lots only. The administrative variance procedure shall not be used to modify a standard for lots yet to be created through a platting process under Chapter 20.86 or 20.88 POMC.
(i) Variance to Parking Standards. A variance may be approved to the minimum or maximum standards for off-street parking (quantities and dimensions of parking spaces) if the applicant demonstrates all of the following:
(A) There is no presumption of validity favoring the action of granting a variance;
(B) The individual characteristics of the use at that location require more or less parking than is generally required for a use of this type and intensity, or modified parking dimensions, as demonstrated by a parking analysis or other facts provided by the applicant;
(C) The need for additional parking cannot reasonably be met through provision of on-street parking or shared parking with adjacent or nearby uses; and
(D) All other code standards are met in conformance with the underlying zoning district and design standards.
(ii) Variance to Bicycle Parking Standards. There is no presumption of validity favoring the action of granting a variance. A variance may be approved to reduce the number of required bicycle parking standards required in Chapter 20.124 POMC if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking.
(iii) Variance to Vehicle Stacking Area. There is no presumption of validity favoring the action of granting a variance. A variance may be approved to reduce the amount of vehicle stacking area required for drive-through facilities if such a reduction is deemed appropriate after analysis of the size and location of the development, limited services available and other pertinent factors.
(iv) Variance to Loading Area Standards. There is no presumption of validity favoring the action of granting a variance. A variance may be approved to modify the loading area standards if such a reduction is deemed appropriate after analysis of the use, anticipated shipping or delivery traffic generated by the use and alternatives for loading/unloading, such as use of on- or off-street parking areas during nonbusiness hours; provided, that traffic, pedestrian access, and circulation standards are not impeded. (Ord. 019-17 § 18 (Exh. 1)).
20.28.160 Administration of quasi-judicial variances.
The community development director is authorized and directed to administer the provisions of this chapter relating to quasi-judicial variances. The authority to hold an open record hearing and provide a final decision on variances is granted to the hearing examiner and the city council has the authority to make a decision on appeal after a closed record hearing. (Ord. 017-23 § 5 (Exh. A); Ord. 019-17 § 18 (Exh. 1)).
20.28.170 Procedure for quasi-judicial variance approval.
Quasi-judicial variance applications are processed pursuant to Chapters 20.20, 20.22, 20.24 and 20.25 POMC. (Ord. 019-17 § 18 (Exh. 1)).
20.28.180 Quasi-judicial variances – Definition and criteria for approval.
(1) Quasi-Judicial Variances – Definition. Any request for a variance under the city’s zoning code that does not meet the definition of an administrative variance above shall be processed as a quasi-judicial variance.
(2) Approval Criteria. There is no presumption of validity favoring the action of granting a variance. The hearing examiner may not approve a quasi-judicial variance unless the applicant demonstrates that all of the following criteria are satisfied:
(a) That, because of special circumstances applicable to the property, including its size, shape, topography, location or surroundings, the strict application of these regulations will deprive such property of privileges enjoyed by other property in the same vicinity and zone as the subject property;
(b) That a grant of a variance will be subject to conditions to ensure that the adjustment authorized is the minimum variation needed and that it will not constitute a grant of special privilege(s) inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located;
(c) The special circumstances applicable to the property are not self-imposed by any person having an interest in the property; and
(d) The variance will not allow the establishment of a use which: (i) is materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated; (ii) is not otherwise permitted in the zone; (iii) would result in the extension of a nonconforming use or structure; or (iv) would change the terms of the zone applicable to any or all of the subject property. (Ord. 019-17 § 18 (Exh. 1)).
20.28.190 Conditioning.
Issuance of a variance may be made subject to such conditions as are necessary to carry out the purpose of this code and ensure that the variance authorized shall not constitute a granting of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. Conditions serving to prevent or minimize adverse effects upon other property in the neighborhood shall include, but shall not be limited to: limitations on size and location, hours of operation, requirements for landscaping or buffer yards, lighting and ingress and egress. (Ord. 019-17 § 18 (Exh. 1)).
20.28.200 Deadline for final decision.
A variance application (either administrative or quasi-judicial) shall be approved, approved with conditions or denied within 120 days after the application has been determined complete, unless the applicant consents in writing to a longer processing time period. (Ord. 019-17 § 18 (Exh. 1)).
20.28.210 Effect of approval.
Issuance of a variance shall be deemed to allow variation from the code section identified in the approval only to the extent authorized in the decision. Development of the property subject to the variance shall not be carried out until the applicant has secured all other permits and approvals required by the city, or any applicable regional, state and federal agencies. Approval of a variance shall not be a precedent for the approval of other variances in the zoning district. (Ord. 019-17 § 18 (Exh. 1)).
20.28.220 Expiration.
A variance approval shall become null and void three years after the effective date, unless one of the following has occurred:
(1) A building permit has been issued and construction begun and diligently pursued;
(2) An extension has been granted by the planning director. Such extension shall be for a maximum of one year, and no extension may be granted which would extend the validity of the variance more than five years beyond the effective date of the variance. No extension will be granted if it necessitates modification of any condition of approval. (Ord. 019-17 § 18 (Exh. 1)).