(a)
Purpose.
The purpose of a petition for a waiver to a particular standard or requirement of this ordinance, as such are applicable to plats or construction plans for a project, is to determine whether or not such particular standard or requirement should be applied to an application or project.
(b)
Definitions.
Waivers shall be classified as “minor” or “major,” as defined in section 9.01.002(b) words and terms defined of this subdivision ordinance.
(d)
Applicability.
(1)
An applicant may request a waiver of a particular standard or requirement applicable to a preliminary plat, to construction plans, or where no preliminary plat application has been submitted for approval, to a final plat or replat. A waiver 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 waiver petition if there are several standards or requirements at issue.
(2)
A petition for a waiver shall not be accepted in lieu of a proportionality appeal or a vested rights petition. If there is a question as to whether a proportionality appeal or vested rights petition is required instead of a petition for a waiver, such determination shall be made by the city.
(e)
Submission procedures.
(1)
A request for a waiver shall be submitted in writing by the applicant with the filing of a preliminary plat, construction plans, final plat or replat, as applicable. No waiver may be considered or granted unless the applicant has made such written request.
(2)
The applicant’s request shall state the grounds for the waiver request and all of the facts relied upon by the applicant. Failure to do so, will result in denial of the application.
(f)
Criteria.
(1)
A waiver to regulations within this subdivision ordinance may be approved only when undue hardship will result from strict compliance to the regulations.
(2)
The planning and zoning administrator and/or city engineer 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 in the proposed development; and
(C)
The effect of such waiver might have upon traffic conditions and upon the public health, safety, convenience and welfare in the vicinity.
(3)
No waiver shall be granted unless the planning and zoning administrator and/or city engineer finds:
(A)
That there are special circumstances or conditions affecting the land involved or other constrains such that the strict application of the provisions of this subdivision ordinance would deprive the applicant of the reasonable use of his or her land; and
(B)
That the waiver is necessary for the preservation and enjoyment of a substantial property right of the applicant, and that the granting of the waiver 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 waiver will not have the effect of preventing the orderly subdivision of other lands in the area in accordance with the provisions of this subdivision ordinance.
(4)
A waiver may be granted only when in harmony with the general purpose and intent of this subdivision ordinance so that the public health, safety and welfare may be secured and substantial justice is done. Financial hardship to the applicant shall not be deemed to constitute undue hardship.
(5)
No waiver shall be granted unless it represents the minimum degree of variation of requirements necessary to meet the needs of the applicant.
(6)
The planning and zoning administrator and/or city engineer shall not authorize a waiver 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 waiver request to be denied. If the waiver request is approved based upon false information, whether intentional or not, discovery of such false information shall nullify prior approval of the waiver and shall be grounds for reconsideration of the waiver request.
(g)
Burden of proof.
The applicant bears the burden of proof to demonstrate that the requirement for which a waiver is requested, if uniformly applied, imposes an undue hardship or disproportionate burden of the applicant. The applicant shall submit the burden of proof with the original submittal.
(h)
Decision.
The planning and zoning administrator and/or city engineer shall take one of the following actions:
(i)
Notification of decision on petition.
The applicant shall be notified of the decision on the waiver within fourteen (14) calendar days following the decision.
(j)
Appeal.
(1)
Initiation of an appeal.
The applicant may appeal a waiver decision of the planning and zoning administrator and/or city engineer as allowed in this subdivision ordinance. The written request to appeal shall be submitted to the city within fourteen (14) calendar days following the denial decision.
(2)
Appeal to the city council.
The city council shall consider the appeal of a waiver request in conjunction with the approval of the underlying permit application at a public meeting no later than thirty (30) calendar days after the date on which the application was officially filed. The city council may affirm, modify or reverse the decision with an affirmative vote by four voting members of the city council. The city council’s decision is final.
(k)
Effect of approval.
Following the granting of a waiver, the applicant may submit or continue the processing of a plat or construction plans, as applicable. The waiver granted shall remain in effect for the period the plat or construction plans are in effect and shall expire upon expiration of either or both of those applications. Extension of those applications shall also result in extension of the waiver.
(Ordinance 2020-16 adopted 12/8/20)