All applications for variances shall be submitted in writing to the person responsible for administration of the referenced section.

(Ord. No. 4100, §2 (Ex. A), 6-16-98)

(A)

General Procedure. Variances of all zoning regulations shall be considered and decided as shown below by the Board of Adjustment.

(B)

Requirements for Variance Approval.

(1)

Where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration; and

(2)

Where the applicant demonstrates that the granting of the variance will be in keeping with the spirit and intent of the zoning ordinance.

(C)

Minimum Necessary Variance. The Board of Adjustment may only grant the minimum variance necessary to make possible the reasonable use of the applicant's land, building or structure.

(D)

Special Conditions. In granting a zoning regulation variance, the Board of Adjustment may impose whatever special conditions found necessary to ensure compliance and to protect adjacent property.

(E)

Non-permitted Uses. The Board of Adjustment may not grant, as a variance, any use in a zone that is not permitted under the zoning ordinance.

(F)

Specific Tests. The Board of Adjustment shall apply specific tests for the following variance requests:

(1)

Height Variances in All Districts. In addition to meeting all other normal requirements for a variance, an applicant seeking a height variance must establish the increased height of the proposed structure will not adversely affect adjoining or neighboring property owners, nor impair the beauty of Old Main, the historical churches on Dickson Street near East Avenue, nor otherwise impair the historic beauty and character of Fayetteville.

(Code 1965, App. A. 5 (VII (a)); Ord. No. 2148, 10-7-75; Ord. No. 2351, 6-21-77; Ord. No. 2362, 8-2-77; Ord. No. 1747, 6-29-70; Code. 1991, §160.038(E); Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4293, 2-20-01; Ord. No. 4858, 4-18-06; Ord. No. 4863, 05-02-06; Ord. No. 5296, 12-15-09; Ord. No. 5526, 9-18-12; Ord. No. 6867 meeting, §7, 5-6-25)

Certain variances of the development, parking and loading regulations may be applied as follows:

(A)

General Requirements.

(1)

Undue Hardship. If the provisions of Development, Chapter 166, or Parking and Loading, Chapter 172 are shown by the developer to cause undue hardship as they apply to this proposed development (including, but not limited to financial, environmental, or regulatory) and that the situation is unique to the subject property, the City Planning Commission may grant a variance, on a temporary or permanent basis, to the development from such provision, so that substantial justice may be done and the public interest secured; provided that the variation will not have the effect of nullifying the intent and purpose of the development or parking and loading regulations. No variance shall be granted for any property which does not have access to an improved street.

(2)

Conditions and Safeguards. In granting variances, the Planning Commission may prescribe appropriate conditions and safeguards to secure substantially the objectives of the standards or requirements so varied.

(B)

Consideration by the City Council—Park Land Dedication. Any variation in the land dedication ratios or contribution formulas set forth in §166.04(B) shall be considered a variance and requires approval of the City Council. Upon recommendation of the Planning Commission after consultation by the commission with the Parks and Recreation Advisory Board, the City Council, upon determination that enforcement of §166.04(B) would cause unnecessary hardship, or that the problems or merits of the development reflect unique circumstances, may grant a variance of the requirements, provided:

(1)

Consistent with Parks Plan. Any dedication of land or contribution in lieu of land or combination thereof shall adequately provide for the park and recreational needs of the proposed development and be consistent with the Fayetteville Parks Plan.

(2)

Contributions of Services, Facilities, Etc. If the developer proposes to contribute services, facilities, or equipment in lieu of a cash contribution, such a contribution shall not be accepted by the city unless the Parks and Recreation Advisory Board has been consulted and provides a recommendation as to the appropriateness and safety of such contribution.

(C)

Consideration by the Planning Commission.

(1)

General Design Standards.

(a)

Undue Hardship. If the provisions of these standards are shown by the developer to cause undue hardship as they apply to his proposed development, the City Planning Commission may grant a variance to the developer from such provisions, so that substantial justice may be done and the public interest secured; provided that the variation will not have the effect of nullifying the intent and purpose of development regulations.

(b)

Conditions. In granting variances, the Planning Commission may impose such conditions as will, in its judgment, secure substantially the objective of the standards or requirements so varied.

(2)

Commercial, Office and Mixed Use Design and Development Standards. A variance of the exterior appearance and design standards may be granted by the Planning Commission if it is determined that strict compliance with the code would result in an adverse safety impact, or if the standard should not apply due to a unique situation. In granting the variance the Planning Commission may require principal façades without a prominent entry-way to be designed with distinctive architectural details (such as changes in wall plane, glazing, human scale elements such as canopies, awnings, small scale lighting, or other feature) to ensure the intent of the code is met.

(3)

Required Off-Site Improvements.

Grounds. A developer may petition the Planning Commission for a variance of off-site improvement requirements in whole or in part on one or more of the following grounds:

(a)

No City Plans. The city has no plans for upgrading the substandard street or road on which off-site improvements are proposed to be required by the developer.

(b)

Unfair Imposition. The proposed development has primary access to improved streets or roads and the portion of the development which fronts on a substandard street or road is so small or remote from anticipated future traffic patterns as to cause an unfair imposition on the development.

(c)

Alternate Off-Site Improvements. The developer proposes alternative off-site improvements which will protect the health, safety, and welfare of persons residing in the proposed development and the surrounding area and equally benefit said persons.

(d)

Improved Streets or Roads. The developer does not propose access to the proposed development from an existing substandard street or road, and proposes to provide access by streets or roads improved to current city or county standards.

(4)

Buffer Strips and Screening.

(a)

Screening. The Planning Commission shall have the authority to grant a variance from the screening requirements prescribed by §166.10.

(b)

Conditions. The Planning Commission may impose reasonable conditions in the granting of a variance to ensure compliance or to protect adjacent property.

(5)

Parking Variances.

(a)

Number of Spaces. The Planning Commission shall have the authority to vary the number of off-street parking spaces required in the Downtown Core, Main Street Center and Downtown General Districts.

(b)

Findings. The Planning Commission shall make findings indicating:

(i)

Parking Generated. That the proposed use will not generate as much parking as required under the existing standard.

(ii)

Shared Parking. That shared parking facilities are available; or

(iii)

On-street Parking. That on-street parking can satisfy intermittent and occasional demands.

(c)

Conditions. All variances shall meet the conditions listed below:

(i)

Downtown Core, Main Street Center, and Downtown General Districts. Conditions for variances in Downtown Core, Main Street Center, and Downtown General Districts:

(a)

In Lieu Fee. An in lieu fee of $1,200.00 for each on-site parking space shall be paid to the city. This money shall be held in an interest bearing account and shall be expended for public parking facilities within the district it is collected within ten (10) years from the date it is collected. If said money has not been so expended within ten (10) years of the date collected, said money, together with the interest thereon, shall be refunded to the person or entity who made the contribution; or

(b)

Shared Parking. For any parking space which is proposed to be shared under the provision of §172.05(C). The applicant must present a signed agreement with the owner of the property. The agreement shall address the number of spaces required for both properties, the number of spaces available together with a site plan, and any other pertinent information, such as restrictions on sharing for certain days or hours.

(6)

Tree Preservation Plan. A developer may petition the Planning Commission for a variance from the requirements of Chapter 167, Tree Preservation and Protection, in those cases where their strict application would work an injustice as applied to the proposed development due to a situation unique to the subject real property; provided that such variance shall not have the effect of nullifying the intent and purpose of the chapter. The Planning Commission's approval of said variance must be affirmed by the City Council to become effective, and a denial of the requested variance may be appealed to the City Council.

(7)

Flood Damage Prevention Code. The Planning Commission shall hear and decide requests for variances from the requirement of this ordinance.

(a)

In passing upon such applications, the Planning Commission shall consider all technical evaluations, all relevant factors, and standards specified in other sections of this ordinance.

(b)

Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed in the National Register of Historic Places, without regard to the procedures identified in the remainder of this ordinance. Variances may only be issued for such repair, or rehabilitation if strict enforcement of the ordinance would preclude the structure's continued designation as a historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure.

(c)

Generally, variances may be issued for new construction and substantial improvements to be erected on a lot ½ acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items listed in §168.05(B)(4) have been fully considered. As the lot size increases beyond half acre, the technical justification required for issuing the variance increases.

(d)

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(e)

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(f)

Floodplain variances shall only be issued if:

(i)

There are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property, which do not apply generally to other property in the same flood zone;

(ii)

A determination that failure to grant the variance would result in exceptional hardship to the applicant; and,

(iii)

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with the other provisions of the Code of Fayetteville.

(g)

Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the provisions of §168.05(B)(4) are considered and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

(h)

Upon consideration of the factors in this section, and the purpose of this ordinance, the Planning Commission may impose conditions to the granting of floodplain variances as it deems necessary to further the purpose of this ordinance.

(i)

Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the regulatory flood elevation surcharge and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. A copy of the notice shall be recorded by the floodplain administrator in the office of the Washington County Clerk and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land.

(i)

Streamside Protection Zones.

(i)

Undue Hardship. If the provisions of the Streamside Protection Zones are shown by the owner or developer to cause undue hardship as strictly applied to the owner or developer's property because of its unique characteristics, the Planning Commission may grant a variance on a permanent or temporary basis from such provision so that substantial justice may be done and the public interest protected, provided that the variance will not have the effect of nullifying the intent and purpose of the Streamside Protection regulations.

(ii)

Consideration of Alternative Measures. The applicant for the variance shall establish that a reasonable rezoning by the City Council or variance request from the Board of Adjustment will not sufficiently alleviate the claimed undue hardship caused by the Streamside Protection regulations.

(iii)

Conditions and Safeguards. In granting any variance, the Planning Commission may prescribe appropriate conditions and safeguards to substantially secure the objectives and purpose for the regulations so varied and to mitigate any detrimental effects the variance may cause. The Planning Commission should consider the Streamside Protection Best Management Practices Manual and any mitigation recommendations from the City Engineer.

(8)

Outdoor Lighting Plan.

(a)

Undue Hardship. So that substantial justice may be done and the public interest secured, a developer may petition the Planning Commission for a variance from the requirements of Chapter 176: Outdoor Lighting, by showing that their strict application would cause undue hardship as applied to the proposed development; provided that such variance shall not have the effect of nullifying the intent and purpose of the chapter.

(b)

Conditions. In granting variances, the Planning Commission may impose such conditions as will, in its judgment, secure substantially the objectives of the requirements so varied.

(9)

Bicycle rack variance. The Planning Commission may modify the design standards or the requirement for a bicycle rack.

(Ord. No. 4714, 6-21-05; Ord. No. 4930, 10-3-06; Ord. No. 5296, 12-15-09; Ord. No. 5372, 12-7-10; Ord. No. 5390, 3-1-11; Ord. No. 5680, 4-15-14; Ord. No. 5814, §§1, 2, 10-6-15; Ord. No. 6539, §§1—4, 3-1-22)

A variance of the requirements of §§166.02 and 169.03 requiring development approval prior to issuance of grading permit may be granted by the Planning Commission subject to the General Requirements of §156.03. Variances of the requirements of Chapters 169 and 170 may be approved by the City Engineer, subject to the following criteria:

Criteria. Variances of the physical alteration of land and stormwater management, drainage, and erosion control regulations may be applied for as follows:

(A)

Chapter 169 Criteria. A variance may be granted from any requirements of the Physical Alteration of Land regulations dependent upon on the soil types encountered, planned slopes, planned vegetation, and investigative engineering reports.

(B)

Chapter 170 Criteria. A variance may be granted from any requirement of the stormwater management, drainage, and erosion control regulations using the following criteria:

(1)

Special Circumstances. There are special circumstances applicable to the subject property or its intended use; and

(2)

Results. The granting of the variance will not result in:

(a)

Surface Water Runoff. An increase in the rate or volume of surface water runoff;

(b)

Adjacent Property. An adverse impact on any adjacent property, wetlands, watercourse, or water body;

(c)

Water Quality. Degradation of water quality; or

(d)

Objectives. Otherwise impairing attainment of the objectives of Chapters 169 and 170.

(Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 5702, 08-05-14; Ord. No. 6061, §1, 4-17-18)

Consideration by the Zoning and Development Administrator. The Zoning and Development Administrator shall not grant any variance of Chapter 174, Signs, unless and until an applicant demonstrates:

(A)

Special Conditions. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or building in the same district.

(B)

Deprivation of Rights. That literal interpretation of the provisions of the sign regulations would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the sign regulations.

(C)

Resulting Actions. That the special conditions and circumstances do not result from the actions of the applicant.

(D)

No Special Privileges. That granting the variance requested will not confer on the applicant any special privilege that is denied by Chapter 174, Signs, to other lands, structures, or building in the same district.

(E)

Nonconforming Uses. No nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

(F)

Time Limitation. Any variance granted shall automatically be revoked if the applicant does not comply with the terms of the variance within ninety (90) days from the granting thereof; and, the applicant shall be required to comply with the literal provisions of Chapter 174, Signs.

(G)

Prohibited. The Zoning and Development Administrator shall not permit as a variance any sign the erection of which or the continuance of which is prohibited by Chapter 174, nor shall any variance be granted to allow a greater number of signs than specifically set forth therein.

(H)

Content Neutrality; Restrictions. The Zoning and Development Administrator shall not take into account the content of any message sought to be displayed on the sign when determining whether to grant a variance. Variances can only be granted for setbacks, area, height, the proposed on-site location of the sign, or other technical requirements, and shall not exceed 15% of the Code requirement.

(Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4652, 12-07-04)

(A)

Board of Adjustment. The Board of Adjustment shall have the authority to grant variances from the height limits prescribed in Chapter 165. Any person desiring to erect any structure or increase the height of any structure or permit the growth of any object of natural growth, in excess of the heights prescribed, must apply in writing to the Board of Adjustment for a variance. Such variance shall be allowed upon a showing of practical difficulty or unnecessary hardship, together with a showing that the structure or object of natural growth in question will not cause an undue hazard to aircraft operations at the airport.

(B)

Determination from Federal Aviation Administration. The application for a variance shall be accompanied by a determination from the Federal Aviation Administration as to the effect of a proposal on the operation of air navigation facilities and the safe, efficient use of navigable airspace. Additionally, no application for a variance may be considered by the Board of Adjustment unless a copy of the application has been furnished to the airport manager for comment as to the aeronautical effects of the variance. If the Airport Manager does not respond to the application within fifteen (15) days after receipt thereof, the Board of Adjustment may grant or deny said application.

(C)

Marking and Lighting. In granting any application for any permit or variance, approval may be conditioned as to require the owner of the structure or object of natural growth in question to install and maintain obstruction markings or lights.

(D)

Findings of Fact. Written findings of fact and conclusions of law shall be made by the Board of Adjustment based upon the evidence offered at the public hearing.

(Ord. No. 4100, §2 (Ex. A), 6-16-98)

(A)

The Planning Commission shall have the authority to grant a variance from the landscaping requirements prescribed by §177.

(B)

Findings. The Planning Commission shall make the following findings:

(1)

Minimum Variance. That the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.

(2)

Harmony with General Purpose. The Planning Commission shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of the Landscape Regulations, §177, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

(3)

Conditions and Safeguards. In granting any variance, the Planning Commission may prescribe appropriate conditions and safeguards to ensure compliance or to protect adjacent property.

(4)

Undue Hardship. If the provisions of the standards within Landscape Regulations, §177, are shown by the developer to cause undue hardship as they apply to his proposed development, the Planning Commission may grant a variance to the developer from such provisions, so that substantial justice may be done and the public interest secured; provided that the variation will not have the effect of nullifying the intent and purpose of development regulations.

(Ord. No. 4917, 9-05-06)