(a)
Purpose.
The purpose of these relief procedures is to allow an applicant to differ from a particular standard or requirement of this ordinance that would substantially limit the applicant’s ability to utilize the land in a manner requested.
(1)
The rules and regulations of this subdivision ordinance are the standard requirements of the city. Suspension of any of these rules and regulations may be granted upon a good and sufficient showing by the applicant that there are special circumstances or conditions affecting the property in question, or that enforcement of the provisions of this division will deprive the applicant of a substantial property right and that such suspension, if granted, will not be materially detrimental to the public welfare or injurious to other property or property rights in the vicinity.
(2)
Each and every application for variance shall be decided solely and entirely on its own merits and the disposition of any prior or pending application for variance shall not be allowed to enter into or affect any decision on the application in question.
(3)
Pecuniary interests (i.e. financial issues) standing alone shall not be justification for the granting of a variance.
(b)
Definitions of levels of relief.
The director of development services shall be responsible for classifying any relief procedure as “minor” or “major.” Minor modifications may be acted upon by the director of development services or the director of engineering. Variances, as required by state law, and as defined in section 10.03.102, definitions, of this ordinance, require consideration by the board of adjustment.
(c)
Decision-makers and appeals.
(1)
Minor modifications.
A minor modification is acted upon by the director of development services or the director of engineering. An appeal to a decision on a minor modification by the director of development services or the director of engineering (as applicable) shall be considered by the board of adjustment. The board of adjustment will be the final decision maker.
(2)
Variances.
A variance is acted upon by the board of adjustment. An appeal to a variance decision by the board of adjustment shall be considered by a district or county court.
(d)
Applicability.
(1)
An applicant may request relief from a particular standard or requirement applicable to a conveyance plat, preliminary plat, construction plans, final plat, or a replat. The relief petition shall be specific in nature, and shall only involve relief consideration for one particular standard or requirement. An applicant may, if desired, submit more than one relief petition if there are several standards or requirements at issue.
(2)
A petition for relief shall not be accepted in lieu of a vested rights petition (section 10.03.087, vested rights). If there is a question as to whether a vested rights petition is required instead of a petition for relief, such determination shall be made by the director of development services.
(e)
Variance submission procedure.
(1)
A request for relief shall be submitted in writing by the applicant with the submittal of a conveyance plat, preliminary plat, construction plans, final plat, or replat, as applicable. No relief may be considered or granted unless the applicant has made such written request and paid the applicable fee.
(2)
The applicant’s request shall state the grounds for the relief request and all of the facts relied upon by the applicant. Failure to do so will result in denial of the associated plat application.
(f)
Variance criteria.
(1)
A variance to regulations within this ordinance may be approved only when, in the board of adjustment’s opinion, undue hardship will result from strict compliance to the regulations.
(2)
The board of adjustment shall take into account the following factors:
(A)
The nature of the proposed land use involved and existing uses of the land in the vicinity;
(B)
The number of persons who will reside or work in the proposed development; and
(C)
The effect such variance might have upon traffic conditions and upon the public health, safety, convenience and welfare in the vicinity.
(3)
No variance shall be granted unless the board of adjustment finds:
(A)
That there are special circumstances or conditions affecting the land involved or other constraints such that the strict application of the provisions of this ordinance would deprive the applicant of the reasonable use of the land; and
(B)
That the variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, and 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; and
(C)
That the granting of the variance will not have the effect of preventing the orderly subdivision of other lands in the area in accordance with the provisions of this ordinance.
(4)
A variance may be granted only when in harmony with the general purpose and intent of this ordinance so that the public health, safety and welfare may be secured and substantial justice done. Financial hardship to the applicant shall not be deemed to constitute undue hardship.
(5)
No variance shall be granted unless it represents the minimum degree of variation of requirements necessary to meet the needs of the applicant.
(6)
The board of adjustment shall not authorize a variance that would constitute a violation of, or conflict with, any other valid ordinance, code, regulation, master plan, or comprehensive plan of the city.
(7)
Any falsification of information by the applicant shall be cause for the variance request to be denied. If the variance request is approved based upon false information, whether intentional or not, discovery of such false information shall nullify prior approval of the variance, and shall be grounds for reconsideration of the variance request.
(g)
Burden of proof.
The applicant bears the burden of proof to demonstrate that the requirement for which a variance is requested, if uniformly applied, imposes an undue hardship or disproportionate burden on the applicant. The applicant shall submit the burden of proof with the original submittal.
(h)
Decision.
The decision-maker shall consider the variance petition and, based upon the criteria set forth in section 10.03.086(f), variance criteria, shall take one of the following actions:
(i)
Notification of decision on petition.
The applicant shall be notified of the decision on the variance by the director within fourteen (14) calendar days following the decision.
(j)
Appeal process.
(1)
Initiation of an appeal.
The applicant or city staff may appeal a variance decision. A written letter of appeal shall be submitted to the director of development services within fourteen (14) calendar days following the decision by the board of adjustment, as allowed by state law.
(2)
Appeal to district or county court.
The written appeal petition shall be brought before the court of record for final decision.
(k)
Minor modification procedure.
The director of development services shall determine what criteria apply for any relief petition that is considered “minor” in nature on a case-by-case basis. Appeals to his decision shall be heard by the board of adjustment.
(l)
Effect of approval.
Following the granting of a minor modification or variance, the applicant may submit or continue the processing of a plat or construction plans, as applicable. The minor modification or variance granted shall remain in effect for the period the plat, concept plan, or construction plans are in effect, and shall expire upon expiration of any of those applications. Extension of those applications shall also result in extension of the minor modification or variance. The approval of a minor modification or variance relieves the applicant of the imposition of the particular standard or requirement for which a minor modification or variance was sought following the finding of just cause for such minor modification or variance to be allowed. A variance shall not be approved solely based on monetary interests. Minor modifications or variances are heard on a case-by-case basis and do not establish precedent.
(Ordinance 2020-95 adopted 10/13/20)