3.08.06 Variance (City Council or BOA Approval).
Procedures, including initiation of variances are explained in this Section.
A. Applicability. The City Council shall have the authority to hear and grant requests for a variance from the development standards of this Code. Waivers of the standards required for plat approval are not considered variances and must be requested from the Planning and Zoning Commission and then the City Council during the plat review process. Any variance request up to ten (10) percent of any minimum or maximum measurement required by this Code may be treated as an Administrative Exception if the City Manager agrees to recommend the Administrative Exception. A variance to the development standards of this Code will be considered an exception to the regulations contained herein. Granting of a variance in one case does not set a precedent for a subsequent case. Each variance request will be judged on its own merit based on subparagraph B below.
B. Criteria for Review and Required Findings.
The City Council may authorize a variance from the requirements of this Code when an unnecessary hardship would result from the strict enforcement of this Code. In granting a variance, the City Council shall first review the recommendation of the Planning and Zoning Commission and then shall prescribe only conditions that it deems not prejudicial to the public interest. In making the required findings, the City Council shall take into account the nature of the proposed use of the land involved, the existing use of land in the vicinity, the number of persons who will reside or work in the proposed development, the possibility that a nuisance may be created, and the probable effect of such variance upon traffic conditions and upon public health, convenience, and welfare of the vicinity. No variance shall be granted unless the City Council finds all of the following:
1. Extraordinary Conditions. That there are extraordinary or special conditions affecting the land involved such that strict application of the provisions of this Code will deprive the applicant of a reasonable use of its land. For example, a variance might be justified because of topographic, or other special conditions unique to the property and development involved, while it would not be justified due to inconvenience or financial disadvantage.
2. Preservation of a Substantial Property Right. That the variance is necessary for the preservation of a substantial property right of the applicant.
3. Substantial Detriment. That the granting of the variance will not be detrimental to the public health, safety, or welfare, or injurious to other property in the area, or to the City in administering this Code.
4. Other Property. That the conditions that create the need for the variance do not generally apply to other property in the vicinity.
5. Applicant’s Actions. That the conditions that create the need for the variance are not the result of the applicant’s own actions.
6. Comprehensive Plan. That the granting of the variance would not substantially conflict with the Comprehensive Plan and the purposes of this Code.
7. Utilization. That because of the conditions that create the need for the variance, the application of this Code to the particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property.
C. Insufficient Findings.
The following types of possible findings do not constitute sufficient grounds for granting a variance:
1. That the property cannot be used for its highest and best use.
2. That there is a financial or economic hardship.
3. That there is a self-created hardship by the property owner or its agent.
4. That the development objectives of the property owner are or will be frustrated.
D. Limitations. The City Council may not grant a variance when the effect of the variance would be any of the following:
1. To allow the establishment of a use not otherwise permitted in the applicable zoning district.
2. To increase the density of a use above that permitted by the applicable district.
3. To extend physically a nonconforming use of land.
4. To change the zoning district boundaries shown on the Official Zoning Map.
E. Profitability Not to Be Considered. The fact that property may be utilized more profitably should a variance be granted may not be considered grounds for a variance.
F. Variances from Floodplain or Stormwater Management Regulations. The City Council shall make a final decision on any variance request from floodplain or stormwater management regulations.
G. Responsibility for Final Action. Variance requests shall by [be] reviewed by the Planning and Zoning Commission. The Planning and Zoning Commission shall forward its recommendation to the City Council, which is responsible for final action on the Variance request.
