Auburn City Zoning Code
18.70 Variances
Special Exceptions, and Administrative Appeals
18.70.010 Variances.
A. Subject to conditions, safeguards and procedures provided by this title, the hearing examiner may be empowered to hear and decide applications for variances from the terms of this title; provided the hearing examiner may approve a variance only if the request conforms to all of the following criteria. The examiner must enter findings of fact and conclusions of law which support the following criteria and any conditions:
1. That there are unique physical conditions including narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardships arise in complying with provisions of this title.
2. That, because of such physical conditions, the development of the lot in strict conformity with the provisions of this title will not allow a reasonable and harmonious use of such lot.
3. That the variance, if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the lot is located. For nonconforming single-family homes, this finding is determined to be met if the features of the proposed variance are consistent with other comparable features within 500 feet of the proposal.
4. That the special circumstances and conditions associated with the variance are not a result of the actions of the applicant or previous owners.
5. Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district.
6. The approval of the variance will be consistent with the purpose of this title and the zoning district in which the property is located.
7. The variance will not allow an increase in the number of dwelling units permitted by the zoning district.
8. The authorization of such variance will not adversely affect the comprehensive plan.
9. The variance shall not allow a land use which is not permitted under the zoning district in which the property is located.
10. The variance shall not change any regulations or conditions established by surface mining permits, administrative use permits, conditional use permits or contract rezones authorized by the city council.
B. In authorization of a variance, the hearing examiner may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as they may deem necessary to carry out the spirit and purpose of this title and in the public interest.
C. A variance so authorized shall become void after the expiration of one year, or longer period if specified at the time of issuance, if no building permit, occupancy permit or business registration has been issued in accordance with the plans for which such variance was authorized. The hearing examiner may extend the period of variance authorization for one additional year without public hearing upon a finding that there has been no basic change in pertinent conditions surrounding the property at the time of the original application. (Ord. 6269 § 23, 2009; Ord. 4840 § 1, 1996; Ord. 4705 § 2, 1994; Ord. 4229 § 2, 1987.)
18.70.015 Administrative variance.
A. The planning director may, in specific cases, authorize a variance to the development regulations, subject to the criteria set below.
1. Building Setbacks, Lot Coverage, Lot Area, and Lot Width.
a. Applicability. These shall include variances to building setbacks, lot coverage, lot area, and lot width not to exceed 25 percent of a quantifiable standard.
b. Criteria. The planning director may, in specific cases, authorize a variance to the development regulations, subject to compliance with one or more of the following criteria:
i. That the variance, if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the lot is located.
ii. That the special circumstances and conditions associated with the variance are not a result of the actions of the applicant.
iii. Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district.
iv. The approval of the variance will be consistent with the purpose of this title and the zoning district in which the property is located.
2. Variance to Building Height.
a. Applicability. The construction of a principal or accessory building which exceeds the height limit may be authorized upon a lot, not to exceed 50 percent of a quantifiable standard. Refer to Chapter 18.29 ACC for varying height within the downtown urban center, DUC zoning district.
b. Additional Public Notice Requirements. If a residential zoning district is within 300 feet of the subject site, then a public comment period shall occur following the procedures contained in ACC Title 14. The planning director or designee shall render a decision within 10 days following the close of the public comment period.
c. Criteria. The planning director may, in specific cases, authorize a variance to the height of buildings, subject to compliance with one or more of the following criteria:
i. Additional height shall be the minimum necessary to afford relief.
ii. That the variance, if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the lot is located.
iii. The approval of the variance will be consistent with the purpose of this title and the zoning district in which the property is located.
B. In authorization of an administrative variance, the planning director may attach such conditions regarding the location, character and other features of the proposed structure or use as they may deem necessary to carry out the intent and purpose of this title and in the public interest.
C. A variance so authorized shall become void after the expiration of one year, or longer period if specified at the time of issuance, if no building permit, occupancy permit or business registration has been issued in accordance with the plans for which such variance was authorized. The planning director may extend the period of variance authorization for one additional year upon a finding that there has been no basic change in pertinent conditions surrounding the property at the time of the original application. (Ord. 6389 § 2, 2011.)
18.70.020 Special exceptions.
A. Only the following special exceptions may be granted by the hearing examiner after a public hearing is held pursuant to ACC 18.70.040:
1. Platted lots within the same block and same zone, but separated by a public alley, may be used as a single building site for the purpose of calculating the number of dwelling units permitted in a structure to be erected on one side of the alley, subject to the following requirements:
a. Each portion of the property shall abut a minimum of 100 feet upon the alley.
b. The two portions of the property shall be directly opposite for a distance representing at least 50 percent of the width of the portion of the property not to be occupied by the proposed building.
c. The portion of the property not occupied by the building shall not be sold, segregated or used for building purposes so long as the building remains on the portion of property on the opposite side of the alley.
2. Whenever there is a change from a residential use to a nonresidential use in an existing building a special exception may be issued to exclude the floor area within the building, that cannot be effectively utilized by the proposed use, from the off-street parking requirements.
3. A nonresidential structure or use which becomes a legal nonconforming structure or use after the effective date of the ordinance codified in this title may be permitted, by means of a special exception, to expand the existing use or structure up to 25 percent of the use or structure existing at the time of the adoption of this title; provided further, that the addition otherwise meets the standards of this title and other requirements of the city.
This section does not allow the expansion of a use or structure which would be inconsistent with a previously authorized administrative use permit, conditional use permit, special property use permit, contract rezone, or binding agreement between the city and the property owner. This section also does not allow the expansion of any nonconforming hazardous material storage.
4. Pursuant to ACC 18.54.060(G), a special exception may be issued for the replacement of a nonconforming structure or part thereof which does not comply with the appropriate development standards.
5. Pursuant to ACC 18.54.070(B), a special exception may be issued for residential uses, in commercial or industrial zones, to reoccupy if unoccupied for longer than 180 days.
B. In considering applications for special exceptions, the hearing examiner shall consider the nature and condition of all adjacent uses and structures, and no such special exception shall be authorized by the hearing examiner unless the hearing examiner finds that the authorizing of such special exception will not be materially detrimental to the public welfare or injurious to property in the zone or vicinity in which the property is located, and that the authorization of such special exception will be consistent with the spirit and purpose of this title. In authorizing a special exception, the hearing examiner may impose such requirements and conditions with respect to location, installation, construction, maintenance and operation and extent of open spaces in addition to those expressly set forth in this title as may be deemed necessary for the protection of other properties in the zone or vicinity and the public interest. (Ord. 6269 § 24, 2009; Ord. 4840 § 1, 1996; Ord. 4229 § 2, 1987.)
18.70.025 Variances in regulatory floodplains.
A. Subject to conditions, safeguards and procedures provided by this section, the hearing examiner may be empowered to hear and decide applications for variances from the terms of Chapter 15.68 ACC; provided the hearing examiner may approve a variance only if the request conforms to all of the criteria in subsection B of this section. In reviewing applications for a variance, the hearing examiner shall consider all technical evaluations, all relevant factors, standards specified in other sections of the ordinance codified in this section, and:
1. The danger to life and property due to flooding or erosion damage;
2. The danger that materials may be swept onto other lands to the injury of others;
3. The safety of access to the property in times of flood for ordinary and emergency vehicles;
4. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site;
5. The susceptibility of the proposed facility and its contents to flood or erosion damage and the effect of such damage on the individual owner;
6. The availability of alternative locations for the proposed use which are not subject to flooding or channel migration and are not in designated fish and wildlife habitat conservation areas;
7. The relationship of the proposed use to the comprehensive plan, growth management regulations, and floodplain management program for that area;
8. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges;
9. The potential of the proposed development project to destroy or adversely affect a fish and wildlife habitat conservation area;
10. The potential of the proposed development project to affect, or be affected by, channel migration;
11. Shall not result in a violation of this chapter;
12. Must be compliant with the Endangered Species Act.
B. The examiner must enter findings of fact and conclusions of law which support the following criteria and any conditions. No variance shall be granted to the requirements of Chapter 15.68 ACC unless the applicant demonstrates that:
1. The development project cannot be located outside the regulatory floodplain;
2. An exceptional hardship would result if the variance were not granted;
3. The relief requested is the minimum necessary;
4. The applicant’s circumstances are unique and do not represent a problem faced by other area properties;
5. If the project is within a designated floodway, no increase in flood levels during the base flood discharge would result;
6. The project will not adversely affect fish or other wildlife habitat.
If the issue is not specific to the property, but is a problem faced by other properties, the remedy should be a revision to the ordinance rather than a variance;
7. There will be no additional threat to public health, safety, beneficial stream or water uses and functions, or creation of a nuisance;
8. There will be no additional public expense for flood protection, lost environmental functions, rescue or relief operations, policing, or repairs to streambeds, shorelines, banks, roads, utilities, or other public facilities; and
9. All requirements of other permitting agencies will still be met.
C. Variances requested in connection with restoration of a historic site, building or structure may be granted using criteria more permissive than the above requirements, provided:
1. The repair or rehabilitation is the minimum necessary to preserve the historic character and design of the site, building or structure; and
2. The repair or rehabilitation will not result in the site, building or structure losing its historic designation.
D. Variances to the provisions of Chapter 15.68 ACC, Article V, may be issued for a structure on a small or irregularly shaped lot contiguous to and surrounded by lots with existing structures constructed below the FPE, providing the other variance criteria are met. The applicant for such a variance shall be notified, in writing, that the structure (1) will be subject to increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage, and (2) such construction below the FPE increases risks to life and property. Such notification shall be maintained with a record of all variance actions.
E. Variances Pertain to a Physical Piece of Property. They are not personal in nature and are not based on the inhabitants or their health, economic, or financial circumstances. (Ord. 6295 § 10, 2010.)
18.70.030 Application.
In addition to the requirements for a complete application as set forth in ACC Title 14, a site plan shall be required with each application for a variance, administrative variance or special exception. The site plan shall be accurately drawn using an appropriate engineering scale and shall illustrate the following:
A. Adjacent street;
B. Boundaries and dimensions of site;
C. Location of buildings;
D. Location of parking areas;
E. Location of feature needing variance. (Ord. 6389 § 1, 2011; Ord. 4840 § 1, 1996; Ord. 4229 § 2, 1987.)
18.70.040 Hearing date and notice.
When an application addressed to the hearing examiner has been filed in accordance with the provisions of this chapter, the planning department shall set a date for hearing the same. Notice of such hearing shall:
A. Be given not less than 10 days prior to the date of the hearing;
B. Set forth the time, place and purpose of such hearing;
C. Be provided in accordance with the requirements of ACC 14.07.040. (Ord. 5811 § 9, 2003; Ord. 4840 § 1, 1996; Ord. 4229 § 2, 1987.)
18.70.050 Administrative appeals.
Appeals from any administrative decision made under this title may be appealed to the hearing examiner pursuant to Chapter 2.46 ACC.
A. Any person wishing to appeal an administrative decision shall first render in writing a request for an administrative decision from the appropriate city official. The city official shall issue in writing a decision within five working days of the written request.
B. If the requester seeks to appeal that decision to the hearing examiner, any such appeal shall be filed with the planning director within 14 days of mailing the city’s written decision. The city shall extend the appeal period for an additional seven days for appeals that are accompanied by a final mitigated determination of nonsignificance or final EIS.
C. The planning director shall notify any other city official that may be affected by the appeal.
D. The appeal shall then be processed in the same manner as any other application for a hearing examiner decision pursuant to Chapter 2.46 ACC.
E. The examiner shall conduct a public hearing pursuant to ACC 18.70.040 and consider any facts pertinent to the appeal. The examiner may affirm the decision, remand for further proceedings, or reverse the decision if the decision is:
1. In violation of constitutional provisions;
2. In excess of the authority of the official;
3. Made upon an unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous; or
6. Arbitrary or capricious. (Ord. 6442 § 27, 2012; Ord. 4840 § 1, 1996; Ord. 4229 § 2, 1987.)
18.70.060 Appeal of hearing examiner’s decision.
The hearing examiner’s decisions may be appealed to superior court in the manner prescribed by Chapter 2.46 ACC. (Ord. 6442 § 28, 2012; Ord. 6185 § 10, 2008; Ord. 4840 § 1, 1996; Ord. 4229 § 2, 1987.)