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Encinitas City Zoning Code

CHAPTER 30

78 VARIANCES

§ 30.78.010 Purpose.

A. 
The purpose of this chapter is to establish the procedures and standards for exercising the authority granted to the City by the State of California regarding variances.
B. 
"Director" shall mean "Director of Planning and Building."
(Ord. 86-18; Ord. 2003-08)

§ 30.78.020 Authority to Grant Variance.

A. 
The Director is authorized to render a final determination on an application for a minor variance for a project:
1. 
That is for a maximum 20% encroachment into any yard setback (hereinafter designated a "minor variance," all other variances hereinafter designated "major variance"); and
2. 
That does not contain another component which requires a final determination from the Planning Commission, or City Council.
B. 
Except as otherwise provided in this chapter, the Planning Commission is authorized to render a final determination on an application for variance.
(Ord. 92-15; Ord. 96-07; Ord. 2015-01)

§ 30.78.024 Procedure.

A. 
The owner, or the owner's authorized agent, of the real property for which the variance is requested shall make application to the Director on a form approved by the Director. To be received, the application must be accompanied by a processing fee in an amount set, from time to time, by resolution of the City Council, together with whatever additional plans and information the Director deems necessary to accomplish the purposes of this chapter.
1. 
The privilege lawfully enjoyed by a substantial number of other property owners in the vicinity and under an identical zoning classification;
2. 
The factors which make the subject property special when compared to other property in the area;
3. 
The way in which the special circumstances combine with the strict application of the zoning regulations to deprive the applicant of the privilege enjoyed by other property in the vicinity and under the identical zoning classification;
4. 
The way in which the grant of the variance will bring the applicant's property development into parity with other property in the vicinity and will not amount to a grant of special privilege over and above those privileges enjoyed by other properties in the vicinity and under an identical zoning classification;
5. 
The code section from which the variation is granted, the degree of variation allowed and the conditions imposed on the variation.
B. 
When the Director has determined that all required information has been submitted in proper form and the applicant has submitted to the City the required processing fee, the Director shall place the matter on the agenda of the authorized body for a public hearing.
C. 
Notice for the public hearing shall be made in accordance with the provisions of Chapter 30.01.
(Ord. 96-07; Ord. 2017-03)

§ 30.78.030 Resolution of Determination.

A. 
A final determination granting a variance shall be by notice of determination when the Director is the granting authority, by resolution when the Planning Commission is the granting authority, and by resolution when the City Council grants a variance on appeal.
B. 
Findings. No granting of a variance shall be approved or conditionally approved unless the decision-making authority finds:
1. 
That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification;
2. 
That the variance shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the subject property is located and is subject to any conditions necessary to assure compliance with this finding;
3. 
That the variance does not authorize use or activity which is not otherwise expressly authorized by the zoning regulation governing the subject property;
4. 
That the inability to enjoy privileges enjoyed by other property in the vicinity and under identical zoning classification:
a. 
Could not be avoided by an alternate development plan that would be of less significant impact to the site and adjacent properties than the project requiring the variance;
b. 
Is not self-induced as a result of action taken by the property owner or the property owner's predecessor(s);
c. 
Would not allow such a degree of variation as to constitute a rezoning or other amendment to the zoning code; and
d. 
Would not authorize or legalize the maintenance of a public nuisance.
5. 
In addition to the required findings, the final determination shall set forth:
a. 
The privilege lawfully enjoyed by a substantial number of other property owners in the vicinity and under an identical zoning classification;
b. 
The factors which make the subject property special when compared to other property in the area;
c. 
The way in which the special circumstances combine with the strict application of the zoning regulations to deprive the applicant of the privilege enjoyed by other property in the vicinity and under the identical zoning classification;
d. 
The way in which the grant of the variance will bring the applicant's property development into parity with other property in the vicinity and will not amount to a grant of special privilege over and above those privileges enjoyed by other properties in the vicinity and under an identical zoning classification;
e. 
The code section from which the variation is granted, the degree of variation allowed and the conditions imposed on the variation.
C. 
A resolution denying a variance application shall set forth the basis of the denial.
(Ord. 96-07; Ord. 2017-03)

§ 30.78.040 Conditions.

Conditions imposed upon the granting of the variance shall be set forth in a covenant executed by the property owner and recorded with the County Recorder.
(Ord. 2017-03)

§ 30.78.050 Expiration of Variance.

If substantial construction has not been completed in reliance upon a granted variance within two years of the grant, then upon notice to the property owner and an opportunity to present information to the Director, the Director may declare the variance to have expired with the privileges granted thereby canceled.
(Ord. 92-15; Ord. 2017-03)

§ 30.78.060 Extension to Complete Substantial Construction.

Upon application to the Director and good cause having been shown, the Director may, on one or more occasions, extend the expiration period on the variance. However, the total of all extensions shall not exceed a period of two years. Upon proper filing of an application for extension, public notice shall be made according to the provisions of Chapter 30.01 and this chapter. A public hearing is not required.
(Ord. 92-15; Ord. 2017-03)

§ 30.78.070 Revocation of Variance.

In the event that one or more of the conditions imposed on the variance is violated, the Director, upon notice and an opportunity to present information, may revoke the variance or impose additional conditions.
(Ord. 2017-03)

§ 30.78.080 Reapplication.

In the event that an application for variance is denied, the City shall not receive for filing any application for the same or similar variance within 24 months of such denial.
(Ord. 2017-03)

§ 30.78.090 Appeals.

A final determination by the Director or the Planning Commission under the authority of this chapter may be appealed to the City Council in accordance with the procedures specified in this Code (see Chapter 1.12).
(Ord. 96-07; Ord. 2017-03)