Section 106. Authorization to Grant or Deny Variances. Excluding the provisions of Section 48A Mixed Use Districts and Section 133 Development Review / Approval of Plans, the Hearings Board may authorize variances from the requirements of this Ordinance. Variances from the provisions of Sections 48A and 133 may be authorized only by the Planning Commission. Either the Hearings Board or the Planning Commission may authorize variances where it can be shown that, owing to special and unusual circumstances related to a specific piece of property or use, the literal interpretation of this Ordinance would cause an undue or unnecessary hardship; except that no variance shall be granted to allow the use of property for purposes not authorized within the zone in which the proposed use would be located. In granting a variance, the Board or the Commission may attach conditions which it finds necessary to protect the best interests of the surrounding property or neighborhood and to otherwise achieve the purposes of this Ordinance. (Amended by Ord. No. 2752/3-76; Ord. No. 5778/8-07 and 5891/12-08.)
Section 107. Conditions for Granting a Variance. No variance shall be granted unless it can be shown that all of the following conditions exist:
(1) Exceptional or extraordinary conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size or shape, topography, or other circumstances over which the applicant has no control.
(2) The variance is necessary for the preservation of a property right of the applicant substantially the same as is possessed by owners of other property in the same zone or vicinity.
(3) The authorization of the variance shall not be materially detrimental to the purposes of this Ordinance, be injurious to property in the zone or vicinity in which the property is located, or be otherwise detrimental to the objectives of any city development plan or policy.
(4) The variance requested is the minimum variance from the provisions and standards of this Ordinance which will alleviate the hardship.
Section 107A. Criteria for Granting a Parking Variance. No parking variance shall be granted unless it can be shown that all of the following criteria are met:
(1) The property or use possesses characteristics that are unique and do not generally apply to other properties or uses in the same zone or vicinity.
(2) All reasonable alternatives to comply with the parking standards have been exhausted.
(3) If the parking variance seeks to exceed the parking maximum then it shall be demonstrated that any excess parking is located in a fashion such that the portion of the site occupied by the excess parking can be redeveloped at some future time if the use changed and excess parking was not needed.
(Section 107A. Added by Ord. No. 4902/5-00.)
Section 107B. Criteria for Granting a Regulatory Floodplain Standard Variance . No regulatory floodplain standard variance shall be granted unless it can be shown that all of the following criteria are met:
(1) Generally, the only condition under which a variance from the standards set out in Section 131 may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the following items have been fully considered:
(a) The danger that materials may be swept onto other lands to the injury of others;
(b) The danger to life and property due to flooding or erosion damage;
(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
(d) The importance of the services provided by the proposed facility to the community;
(e) The necessity to the facility of a waterfront location, where applicable;
(f) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;
(g) The compatibility of the proposed use with existing and anticipated development;
(h) The relationship of the proposed use to the comprehensive plan and flood plain management program for that area;
(i) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(j) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and
(k) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.
As the lot size increases the technical justification required for issuing the variance increases.
(2) Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in this section.
(3) Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.
(4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(5) In addition to the conditions for granting a variance in Section 107 regulatory flood plain standard variances shall only be issued if the following conditions also exist:
(a) A showing of good and sufficient cause; and
(b) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
(6) Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.
(7) Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of flood proofing than watertight or dry-flood proofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except Section 107B(1), and otherwise complies with the standard that all improvements be constructed to minimize flood damage, by using flood resistant materials, anchoring, and the protection of on-site public and private utilities where applicable.
(8) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
(Section 107B. Added by Ord. No. 5523/6-05).
Section 108. Application and Fee. A request for a variance may be initiated by a property owner or authorized agent by filing an application with the City Recorder. The applicant shall submit plans to the Commission as provided in Section 119 and shall pay the fee as set in Section 129. (Amended by Ord. Nos. 2536/11-72; 2658/8-74; 3320/5-82.)
Section 109. Public Hearing on a Variance. Before acting on a request for a variance, the Hearings Board shall consider the variance at a Public Hearing held within 40 days after filing of the application. Not less than 10 days prior to the date of the Hearing, the City Recorder shall give written notice by mail of the hearing to owners of property situated within a 200 foot radius of the boundary of the property subject to the request, using for this purpose names and addresses of owners as shown upon the current records of the County Assessor. Failure of a person to receive the notice specified in this Section shall not invalidate any proceeding in connection with the application for a variance. (Amended by Ord. Nos. 2658/8-74 and 2752/3-76; and 5778/8-07.)
Section 110. Recess of Hearing on a Variance. The Hearings Board may recess a hearing on a request for a variance in order to obtain additional information or to serve further notice upon other property owners or persons it decides may be interested in the proposed variance. Upon recessing for this purpose, the Board shall announce the time and date when the hearing will be resumed. (Amended by Ord. No. 2752/3-76.)
Section 111. Action of the Hearings Board. The Board may attach conditions to an authorized variance which it feels are necessary to protect the public interests and carry out the purpose of this Ordinance. The City Recorder shall notify the applicant for a variance, in writing, of the Board's action within five days after the Board has rendered its decision. (Amended by Ord. No. 2752/3-76.)