The purpose of a variance is to allow variation from the strict application of the requirements of this chapter where by reason of the exceptional narrowness, shallowness or unusual shape of a specific piece of property as of March 6, 1963, or by reason of exceptional topographic conditions, or other extraordinary situation or condition of such piece of property, or of the use or the development of property immediately adjoining the property in question, the literal enforcement of the requirements of this chapter would involve practical difficulties or would cause undue hardship unnecessary to carry out the spirit and purpose of this chapter.

In no case shall a variance be granted to permit a use other than a use permitted in the district.

Application for a variance shall be made by the property owner on a form prescribed by the city, and shall be accompanied by a fee as prescribed by city resolution adopted pursuant to Section 40.01.130, no part of which shall be refundable; provided, that if the application for variance is made at the request of the city solely to preserve trees which are situated on the property which is the subject of the variance, then there shall be no fee.

Maps and drawings required to demonstrate that the conditions set forth in this article apply to subject property, together with precise and accurate legal descriptions and scale drawings of property and existing buildings, and other data required, shall be submitted with the application for a variance.

A site plan shall be submitted that accurately depicts the location of all trees of significance or landmark trees on the site, as defined in Sections 37.01.020, 37.03.010, 37.03.020 and 37.03.050, including the type of tree and diameter of the tree at breast height (DBH). At the discretion of the community development and sustainability department in coordination with the community services director, an arborist's report may be required for any tree(s) on the site that may be affected by the proposal in order to determine whether the proposal will damage the existing tree(s).

A public hearing before the planning commission shall be held on an application for a variance. A variance being processed concurrently with an application requiring city council action shall be scheduled for public hearing before the planning commission for its recommendation and then the city council for final action. Notice of such hearing shall be given to owners of all property within five hundred feet of the subject site and as required by state law and city ordinance. Failure of owners to receive notice of such hearing shall in no way affect the validity of any action taken.

The planning commission or city council may grant a variance only when the following conditions are found as contained herein:

The planning commission or city council shall act upon any application within sixty days of determination of completeness, and may approve the variance or may approve the variance subject to specified conditions. The applicant requesting the variance shall be notified in writing forthwith of any action taken.

Where a variance has not been used within thirty-six months after the date of granting thereof, the variance shall be null and void. Such expiration date may be extended by the director for one or more periods not exceeding a total of eighteen months upon a showing that circumstances and conditions upon which the variance was approved have not changed. Any such extension by the director shall be processed in accordance with the requirements of Article 40.39 regarding administrative approvals.

Notwithstanding such extension, the holder of a variance may request tolling of the term for which the variance is valid due to litigation challenging the issuance of the variance. The tolling request must be submitted in writing to the director prior to the expiration of the term of the variance. The request must establish to the satisfaction of the director that the subject litigation challenges the grant of the underlying permit, or the environmental determinations relating to its approval, and has been filed by a plaintiff or petitioner other than the permit holder. In response to this request, the director may grant a litigation tolling period. The tolling period shall be calculated from the date the action is filed with a court of competent jurisdiction until such time that the court of final jurisdiction enters its final disposition of the case and all appeal periods have expired or such time that the litigation has been dismissed.

Decisions of the planning commission with respect to variances may be appealed to the planning commission upon written request for a hearing before the planning commission. Decisions of the planning commission with respect to variances may be appealed to the city council upon written request. In the absence of such request being filed within ten calendar days after the determination of the planning commission, such determination is final.

In case an application for a variance from the requirements of this chapter is denied, such application shall not be eligible for reconsideration. A new application affecting or including all or part of the same property shall, in the opinion of the planning commission, be substantially different from the application denied to be eligible for consideration.