Unified Development Ordinance

Sec. 10.2.10. Variance

Sec. 10.2.10. Variance aaron.sheppard… Wed, 05/24/2023 - 09:33
10-2-10
  1. Applicability
    The Board of Adjustment has the authority to authorize variances from the provisions of this UDO, subject to the requirements of this section. Provided, however, no variance shall be allowed to any provision of this UDO, which would result in an amendment to the 2030 Comprehensive Plan, the Street Plan, or any other adopted City plan. Any change or amendment to such plans or maps must be done in accordance with the process set forth in Sec. 10.2.2. for 2030 Comprehensive Plan amendments.
  2. Pre-Application Conference
    Before submitting an application for a variance, an applicant shall schedule a pre-application conference with the Planning Director to discuss the procedures, standards and regulations required for approval. This requirement may be waived at the discretion of the Planning Director.
  3. Application Requirements
    1. An application for a variance shall be submitted in accordance with Sec. 10.2.1.B.
    2. A Variance Application must be signed and notarized by the property owner in order to initiate a request for variance.
  4. Approval Process
    1. Planning Director Action
      City Planning shall review the application for a variance in light of the showings of Sec. 10.2.10.D.3. below and advise the applicant.
    2. Board of Adjustment Action
      Following notice as required in Sec. 10.1.8. and Sec. 10.2.1.C., the Board of Adjustment shall hold a quasi-judicial public hearing as set forth in Sec. 10.2.1.D.1..
    3. Showings
      ​​​​​​​Before a variance request is granted, the Board of Adjustment shall show all of the following:
      1. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
      2. The hardship results from conditions that are peculiar to the property, such as location, size or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
      3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
      4. The requested variance is consistent with the spirit, purpose and intent of the ordinance, such that public safety is secured and substantial justice is achieved.
  5. Approval Limitations and Conditions
    1. Absent specific authority from this UDO, the Board of Adjustment may not grant a variance which would modify, alter, change or suspend any requirement of a use standard as set forth in Chapter 6. Use Regulations.
    2. In granting a variance, the Board of Adjustment is authorized to attach safeguards and conditions to the approved variance as is necessary and appropriate and reasonably related to the circumstances that gave rise for the need of the variance.
  6. Expiration of Variance
    A variance shall expire after 12 months from the date of approval by the Board of Adjustment unless: (i) a completed building permit application, including payment of all fees has been filed by the applicant and accepted by the City; or (ii) the use and structure were previously in existence prior to the requested variance. Any appeal of the issuance of the variance to Superior Court shall freeze the running of this 12-month period from commencement of the legal challenge until the end of all appeals. Once the use is constructed or established, the variance runs with the land and does not expire except:
    1. When the Board of Adjustment conditioned the variance to a limited defined time period; or
    2. When the variance is revoked in accordance with Sec. 10.2.1.D.1.