The Town realizes that under certain circumstances the strict or literal interpretation and enforcement of the provisions of the zoning regulations may deprive a property of development potential enjoyed by other properties in the vicinity under the identical zoning classification. The purpose of this Chapter is to provide a mechanism to waive or modify the application of applicable zoning standards under special circumstances.

A.

Criteria

1.

The provisions of this Chapter shall only allow variances from the terms of this Development Code when, because of special circumstances applicable to the property in question, including size, shape, topography, location or surroundings, the strict application of this Code deprives such property of privileges enjoyed by other property in the vicinity and under an identical zoning classification.

2.

In no case shall cost to the applicant of strict or literal compliance with the provisions of this Code be the primary reason for granting a Variance.

B.

Exemptions for Public Safety, Use and Grant of Special Privileges. The provisions of this Chapter shall not apply to public safety regulations based on authority mandated by State law or other ordinances, and shall not be applied to grant a variance for a parcel of property which authorizes use or activity which is not otherwise expressly authorized by the zoning classification governing the property. Any variance granted shall be subject to the conditions as described in subsection 9.24.030.C and will also assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zoning classification in which the property in question is located. The provisions of this Chapter shall not apply to Conditional Use Permits.

C.

Each Variance to Standards Separate. Each request to vary the standards of this Code shall be considered a separate Variance and shall require a separate Variance application except that multiple requests by an applicant to vary the same standard of this Code for a single project may be processed under a single application.

The authority to grant Variances shall be vested with the Commission as follows:

A.

Planning Commission. The Commission may grant a Variance to a proposal for which the Commission is the review authority.

B.

Authority to Impose Conditions. In approving a Variance, the approving authority may impose conditions which may include, but are not limited to:

1.

The payment of infrastructure fees;

2.

Requirements for special setbacks or buffer areas;

3.

Open spaces;

4.

Fences and walls;

5.

Installation and maintenance of landscaping;

6.

Street or other infrastructure dedications and improvements;

7.

Regulation of points of vehicular ingress and egress;

8.

Control of traffic circulation;

9.

Regulation of signs;

10.

Regulation of methods and/or time of operation;

11.

Prescribing standards of maintenance of buildings and grounds;

12.

Phasing; and

13.

Such other conditions the Director or Commission deem necessary to ensure compatibility of the project with surrounding development and preserve the public health, safety or welfare.

A.

General. Application for a Variance shall be filed with the Planning Division on a form prescribed by the Director and shall include, but not be limited to, the following maps and information:

1.

Name and address of the applicant;

2.

A statement that the applicant is the owner or the authorized agent of the owner of the property subject to the Variance request. This provision shall not apply to a proposed utility right-of-way;

3.

Address and legal description of the property (Assessor's Parcel Number);

4.

Site plans, fully dimensioned, indicating the type and location of all buildings and structures, parking and landscape areas and signs.

5.

A statement from the applicant indicating:

a.

The Code Section from which relief is being sought;

b.

The hardship or practical difficulty which would result from the strict interpretation and enforcement of this Code;

c.

The alternative means of compliance being proposed;

d.

The special circumstances applicable only to the property to which the application pertains and which do not apply generally to the other properties in the vicinity; and

e.

How, if the Variance is approved, it will not constitute a granting of special privilege which will not be available to other properties in the vicinity.

6.

Additional information or plans as required by the Director.

B.

Fee Required. A Variance application shall be accompanied by a fee established by resolution of the Council to cover the cost of reviewing and handling the application.

The Director shall cause to be made an investigation and report of each Variance application. The report shall be made available to the applicant prior to the action taken on the application.

The Commission shall hold a public hearing, with notice as required by Chapter 9.13. At the public hearing, the Commission shall review the application as well as pertinent evidence concerning the Variance. The Commission shall then approve, modify, conditionally approve or deny the Variance application.

The approving authority shall make all of the following findings in a decision to grant a Variance:

A.

That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this Code deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification;

B.

That granting the Variance will be consistent with the general intent and purpose of the Development Code provisions for the district in which the property is located;

C.

That granting the Variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and zoning district and denied to the property for which the Variance is sought;

D.

That granting the Variance will not be materially detrimental to the public health, safety or welfare, or injurious to the property or improvements in such vicinity and land use district in which the property is located;

E.

That granting the Variance does not constitute a special privilege inconsistent with the limitations upon other properties in the vicinity and in the zoning district and General Plan land use designation such property is located; and

F.

That granting the Variance does not allow a use or activity which is not otherwise expressly authorized by the regulations governing the subject parcel.

The granting of a prior Variance is not evidence for the granting of a new Variance.

The burden of proof to establish the evidence in support of the findings, as required by Section 9.24.070 of this Code, is the responsibility of the applicant.

The decision of the Director or Commission shall be final ten (10) days from the date of the decision unless an appeal has been filed with the appropriate appeal authority in compliance with Section 9.12.250Appeals of this Code.

Expiration. A Variance approval shall expire two (2) years following the date the permit is issued unless prior to the expiration of two (2) years:

A.

Any required building permit related to the Variance is issued and substantial construction is commenced and diligently pursued toward completion; or

B.

An extension of time has been granted pursuant to the provisions within this Chapter.

(Ord. No. 513, § 16, 8-27-2019)

A.

Upon written request received no later than sixty (60) days prior to the original expiration date, the Community Development Director may grant an automatic Extension of Time to an approved Variance. The Variance may be extended beyond the applicable expiration date by three (3) years.

B.

The Planning Commission may, upon an application being filed sixty (60) days prior to expiration, and for good cause, grant a final time extension not to exceed an additional two (2) years. Applications shall be made on a form to be provided by the Planning Division. Upon granting of an extension, the Commission shall ensure that the Variance complies with all current Development Code provisions that apply. The Planning Commission may impose additional conditions at this time.

(Ord. No. 513, § 17, 8-27-2020)

Any alteration or expansion of a project for which a Variance was approved shall comply with all current Development Code provisions and regulations. An application for modification or other change in the conditions of approval of a Variance shall be reviewed according to the provisions of this Chapter in a similar manner as a new application.

A.

Review Authority. The Commission may hold a public hearing to revoke or modify a Variance granted in compliance with the provisions of this Chapter. Ten (10) days prior to taking action, notice shall be delivered in writing to the applicant and/or owner of the property for which such Variance was granted. Notice shall be deemed delivered two (2) days after being mailed, first class postage paid, to the owner as shown on the current tax rolls of the County of San Bernardino and/or the project applicant.

B.

Required Findings. To the extent consistent with law, a Variance may be revoked or modified by the Commission if any one (1) of the following findings can be made:

1.

The circumstances have changed so that one (1) or more of the findings required by Section 9.24.070 of this Chapter can no longer be made, and the grantee has not substantially exercised the rights granted by the Variance;

2.

That the Variance was obtained by misrepresentation or fraud;

3.

That the improvement authorized by the Variance had ceased or was suspended for six (6) or more consecutive calendar months;

4.

That one (1) or more of the conditions of the approved Variance have not been met, and the grantee has not substantially exercised the rights granted by the Variance;

5.

That the improvement permitted by the Variance is in violation of any applicable statute, ordinance, law, or regulation;

6.

That the improvement permitted by the Variance is detrimental to the public health, safety or welfare or constitutes a nuisance.

Permits shall not be issued for any use involved in an application for approval of a Variance unless and until the same shall have become final, in accordance with Section 9.24.100Effective Date of the Variance, of this Chapter.