CHAPTER 1.29
VARIANCE PERMIT
Sections:
1.29.005 Purpose.
1.29.010 Variances Allowed.
1.29.015 Submission of Application.
1.29.020 Form and Contents of Required Documents.
1.29.025 Public Notice.
1.29.030 Review and Approval Procedure.
1.29.035 Approval Standards.
1.29.040 Entitlements.
1.29.045 Appeals.
1.29.005 PURPOSE.
The purpose of this Chapter is to provide a legal method for persons who are seeking relief through the granting of a Variance from the specific provisions of the land use Ordinance that may apply to real property.
1.29.010 VARIANCES ALLOWED.
Variances provide potential relief for landowners whose property may have some special circumstances or unique physical characteristic whereby a strict enforcement of the land use Ordinance will result in unnecessary hardship (not including self-imposed or financial hardship) and deprive that landowner of privileges, rights or benefits that is possessed by other properties within the same district. The Variance process does not change the zoning of a property but may waive or modify standards contained in the land use Ordinance as applied to the property. A Land Use Variance shall not be granted for a use pursuant to UCA 10-9a-702 (5).
1.29.015 SUBMISSION OF APPLICATION.
A. Only property owners, lessees, or their duly authorized agents shall make application for a Variance Permit on forms approved by the Zoning Administrator.
B. No Variance Permit application shall be processed without the submission of the application, all the supporting materials as required by this Chapter, and the processing fee. Incomplete applications shall not be processed under any circumstances. The time frame for when an application shall be reviewed set by policy of the Zoning Administrator.
C. The application for Variance Permit approval shall include the following:
1. All documents required in Section 1.29.020 below.
2. Payment of the applicable fee as set by Resolution of the City Council.
1.29.020 FORM AND CONTENTS OF REQUIRED DOCUMENTS.
The Variance application shall be submitted with the materials listed in this Section. The Zoning Administrator may determine and require that additional items not listed herein be submitted in order to evaluate the proposed Variance application. The number of hard copies shall be determined by the Zoning Administrator.
A. Recorded Plat. The existing recorded plat shall be submitted.
B. Plot Plan. Plot plans showing the location of the existing building(s) on the lot; existing building(s) on adjoining lots; proposed building(s) (if any); and any dimensions or other information that clearly shows the proposed Variance.
C. Written Statement. A written statement as to why the property qualifies for the Variance based upon all the criteria defined in this Chapter and in Section 10-9a-702 of the Utah Code, as amended.
D. Public Notice. Addressed and stamped envelopes (the City’s address shall be the return addresses on the envelopes) of property owners located within three-hundred (300) feet of the proposed Variance.
1.29.025 PUBLIC NOTICE.
A. Public Meeting and Public Hearing. The Zoning Administrator shall cause all property owners within three hundred (300) feet of the boundaries of the parcel of property which is subject to the Variance to be notified by first class mail of the date, time and place of the public hearing and other relevant information associated with the hearing public hearing at least ten (10) days prior to the hearing. A copy of the public notice of the hearing shall also be posted in three (3) public places within the City, or posted on the City website and the Utah Public Notice website at least ten (10) days prior to the hearing. Twenty-four (24) hour notice of a public meeting shall be posted in three (3) public places within the City or posted on the City website and the Utah Public Notice website.
B. Notice to Applicant. Pursuant to Utah Code Annotated 10-9a-202 the Zoning Administrator shall: notify the Applicant of the date, time, and place of each public hearing and public meeting to consider their Variance application; provide to each Applicant a copy of each staff report, if a report is prepared, regarding their Variance application at least three (3) business days before the public hearing or public meeting; and notify the Applicant of any final action on their Variance application.
1.29.030 REVIEW AND APPROVAL PROCEDURES.
A. Zoning Administrator. Upon receipt of a complete application, the Zoning Administrator shall schedule the application for a public hearing and review before the City Attorney, who is the Land Use Authority for the issuance of a Variance. Prior to the hearing at which the Variance application is scheduled to be heard, the Zoning Administrator shall transmit the application materials together with a written analysis of the Variance application, pertinent facts, a review of applicable regulations and a formal staff recommendation to the City Attorney.
B. City Attorney. The City Attorney shall hold a public hearing on the Variance and thereafter consider the Variance request, together with all pertinent facts, applicable regulations and the staff recommendation and shall take action to approve, approve with modifications, disapprove or request further information prior to rendering a final determination on the Variance application. Approval of a Variance Permit shall generally be in the form of a letter to the applicant or the minutes of the meeting in which the application was approved, together with the approved submitted materials, shall constitute the Variance Permit. If the City Attorney denies the Variance Permit application explicit and careful Findings of Fact shall be enumerated for the record as to why reason for the denial. Approval of a Variance Permit is an Administrative Decision.
1.29.035 APPROVAL STANDARDS.
A. The City Attorney shall not approve, even with modifications, a Variance application unless it finds the following:
1. Literal enforcement of the land use Ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use Ordinance;
2. There are special circumstances attached to the property that do not generally apply to other properties in the same district;
3. Granting the Variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;
4. The Variance shall not substantially affect the General Plan and shall not be contrary to the public interest; and,
5. The spirit of the land use Ordinance is observed and substantial justice is done.
B. Determination of Hardship. In determining whether or not enforcement of the land use Ordinance would cause an unreasonable hardship, the City Attorney may not find an unreasonable hardship unless it alleges that the hardship:
1. Is located on or associated with the property for which the Variance is sought; and,
2. Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.
C. Determination of Special Circumstances. In determining whether or not there are special circumstances attached to the property, the City Attorney may find that special circumstances exist only if they:
1. Relate to the hardship complained of; and
2. Deprive the property of privileges granted to other properties in the same district.
D. Approval Parameters.
1. The applicant shall bear the burden of proving that all of the conditions justifying a Variance have been met.
2. Variances run with the land.
3. In granting a Variance, the City Attorney may impose additional requirements on the applicant that shall:
a. Mitigate any harmful effects of the Variance; or
b. Serve the purpose of the standard or requirement that is waived or modified.
1.29.040 ENTITLEMENTS.
A. Validity. The approval of a Variance Permit is the eligibility to have waived or modified the standards of land use ordinance applied to the property except as follows:
1. Permit Issued in Conflict. In accordance with 1.01.025 any Variance Permit approved which is in conflict with this Title shall be null and void.
2. Revocation. Variance Permit may be revoked if: terms of the permit are violated.
3. Expiration. A Variance Permit shall expire one (1) year after the date of the approval and shall be null and void unless the property owner or their duly authorized agent has obtained a Building Permit, where required. A one (1) year extension may be granted if the application for extension and the filing fee is received by the Zoning Administrator prior to the expiration date as is set out above.
B. Additional Permits. Property owners or their duly authorized agents are entitled to make application for a Building Permit, where required once a Variance Permit has been approved.
1.29.045 APPEALS.
A. Any person aggrieved by the decision of any part of the Variance review or approval process may appeal in accordance with Chapter 1.04.
B. The Appeal Authority and deadline for filing an appeal for Variances shall be as follows:
1. First Appeal. Person has ten (10) days to appeal the decision of the City Attorney to the City Council.
2. Second Appeal. Person has thirty (30) days to appeal the decision of the City Council to District Court. (See Utah Code 10-9a-801)
ORD 21-06