Fremont City Zoning Code
CHAPTER 1165
Appeals and Variances
1165.01 INTENT OF APPEAL OR VARIANCE.
(a) Administrative Appeal. The administrative appeal procedure allows any person or any official of the City of Fremont, aggrieved by an administrative decision during the administration or enforcement of this Zoning Ordinance, the opportunity to have the Board of Zoning Appeals review that decision. The Board shall determine whether or not the decision was in conformance with this Zoning Ordinance.
(b) Variance. The variance procedure allows the Board of Zoning Appeals the authority to grant a variation from the requirements of the Zoning Ordinance as will not be contrary to the public interests, and where owing to special conditions, a literal enforcement of these provisions would result in an unnecessary hardship. It is not intended that variances be granted merely to remove inconveniences or financial burdens that the requirements of this Zoning Ordinance may impose of property owners in general. Variances are intended to address extraordinary, exceptional, or unique situations that were not caused by the applicant’s act or omission. No nonconforming use of neighboring lands, structures or buildings in the same district shall be considered grounds for issuance of a variance.
(Ord. 2020-4053. Passed 1-7-21.)
1165.02 PROCEDURE FOR APPEAL.
(a) Initiation.
(1) Appeals are to be initiated by any person or any official of the City of Fremont, aggrieved by any decision, order, determination, or interpretation made by the Zoning Inspector, other administrative official, or administrative decision of a board of the City charged with the administration or enforcement of this Zoning Ordinance.
(2) The appeal has been filed within ten (10) days after the decision.
(b) Applications. Applications for administrative appeals are available at the Engineering and Zoning Office and when completed are to be returned to such office. The applications for administrative appeals shall include but not be limited to the following:
(1) Name, address and telephone number of the applicant.
(2) Location of the property and the zoning district including address and legal description.
(3) Present and proposed use.
(4) If required by the Zoning Inspector, a vicinity map and plat layout containing information as required by the Zoning Inspector.
(5) A statement identifying the decision which is being appealed and the reason for the request.
(c) Review of Application by Zoning Inspector.
(1) The Zoning Inspector, upon receipt of the application shall review the application for completeness.
(2) Within three (3) working days after the completed application or appeal has been filed it shall be transmitted to the Board.
(d) Review by Board. Within sixty (60) days of receiving an application the Board shall consider the application. No public hearing shall be held for an administrative appeal.
(e) Action by Board. The Board shall decide on the application within sixty (60) days after receipt by the Engineering and Zoning Office.
(f) Decisions by Board.
(1) The Board shall reverse, affirm or modify the order, requirement, decision or determination that is being administratively appealed. Such decision shall, in the opinion of the Board, reflect conformity with the provisions of this Zoning Ordinance.
(2) An administrative decision or determination shall not be reversed or modified by the Board unless there is competent, material, and substantial evidence in the record that the decision or determination fails to comply with either the procedural or substantive requirements of this Zoning Ordinance.
(g) Transmittal of Board Decision.
(1) A certified copy of the Board's decision shall be transmitted to the applicant.
(2) The decision of the Board shall be binding upon the Zoning Inspector and applicant. (Ord. 2020-4053. Passed 1-7-21.)
1165.03 STAY OF PROCEEDINGS PENDING APPEAL.
The filing of an administrative appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector certifies to the Board that, by reason of the facts presented in the application, a stay would cause imminent peril to life and property.
(Ord. 2020-4053. Passed 1-7-21.)
1165.04 PROCEDURE FOR VARIANCE.
(a) Initiation. Any person having authority to file applications may initiate an application for a variance pursuant to Section 1157.03 Authority to File Application.
(b) Applications. Applications for variances are available at the Engineering and Zoning Office and when completed are to be returned to such office. The applications for variances shall include but not be limited to the following:
(1) Name, address and telephone number of the applicant.
(2) Location of the property and the zoning district including address and legal description.
(3) Present and proposed use.
(4) If required by the Zoning Inspector, a vicinity map and plat layout containing information as required by the Zoning Inspector.
(5) A statement identifying the variance requested and the reason for the request.
(6) A list of all property owners within, contiguous to and directly across the street from the subject property. The applicant may request the City prepare the name list for an additional cost as provide for in Section 1157.16(d): Deposit for Notice Mailing and Publication Cost.
(c) Review of Application by Zoning Inspector.
(1) The Zoning Inspector, upon receipt of the application shall review the application for completeness.
(2) Within three (3) working days after the completed application or appeal has been filed it shall be transmitted to the Board.
(d) Review by Board.
(1) Within sixty (60) days of receiving a complete application for a variance only, the Board shall hold a public hearing to consider the application.
(2) Notice of the public hearing shall be given not less than ten (10) days prior to the date of the hearing by publishing a notice in a newspaper of general circulation within the City. A notice shall also be sent to the applicant and may be posted at the property in question. In addition, written notice of the hearing shall be mailed, by first class mail, at least ten (10) days before the day of the public hearing to all owners of property contiguous to, and directly across the street from the property which is the subject of the variance. The information content of the notice shall be in accordance with Section 1157.08: Public Notification for Public Meetings. Failure to deliver the notification, as provided in this Section, shall not invalidate any such variance.
(e) Decision by Board.
(1) The Board shall decide on the application within sixty (60) days after receipt by the office of the Zoning Inspector.
(2) The Board shall grant, deny or modify the variance application.
(f) Transmittal of Board Decision. A certified copy of the Board's decision shall be transmitted to the applicant.
(1) The decision of the Board shall be binding upon the Zoning Inspector and applicant.
(2) If the application is denied, no subsequent application for the same variance shall be filed until the expiration of twelve (12) months after the original or subsequent denials.
(Ord. 2020-4053. Passed 1-7-21.)
1165.05 REVIEW CRITERIA FOR VARIANCE APPLICATIONS.
The variance shall not be granted unless the following conditions exist:
(a) The special circumstances apply to the applicant's building or land and do not generally apply to other buildings or lands in the same zoning district.
(b) The special circumstances are not the result of the actions of the applicant.
(c) The literal interpretation of the provisions of this Zoning Ordinance would deprive the applicant of rights commonly enjoyed by other property owners in the same zoning district.
(d) The variance will provide the minimum necessary relief and will represent the least possible modification.
(e) The proposed variance will not constitute a change, including a variation in use, on the official Zoning Map, or permit a use which is not permitted in the zoning district. (Ord. 2020-4053. Passed 1-7-21.)
1165.06 VARIANCE TIME LIMIT.
Any variance which is not exercised within one (1) year from the date of issuance is hereby declared to be revoked without further hearing by the Board of Zoning Appeals.
(Ord. 2020-4053. Passed 1-7-21.)
1165.07 EFFECT OF A VARIANCE.
(a) The issuance of a variance shall authorize only the particular variation that is approved in the variance.
(b) A variance, including any conditions, shall run with the land and shall not be affected by a change in ownership.
(Ord. 2020-4053. Passed 1-7-21.)
1165.08 APPEAL TO CITY COUNCIL.
(a) Intent to Appeal and Petition to City Council. Any applicant, person, firm or corporation, or any officer, department, board or agency of the City, or any interested elector of the City who has been aggrieved or affected by any decision of the Board, may appeal from such decision to Council by filing notice of intent to appeal within five (5) days and filing a petition with the Clerk of Council within fifteen (15) days from the date of the decision setting forth the facts of the case.
(b) Public Hearing.
(1) Council shall hold a public hearing on such appeal not later than thirty (30) days after the appeal has been filed with the Clerk. Notice of the public hearing shall be given not less than ten (10) days prior to the date of the hearing by publishing a notice in a newspaper of general circulation within the City. A notice shall also be sent to the applicant and may be posted at the property in question. In addition, written notice of the hearing shall be mailed by first class mail, at least ten (10) days before the day of the public hearing to all owners of property contiguous to, and directly across the street from the property which is the subject of the variance. The information content of the notice shall be in accordance with Section 1157.08: Public Notification for Public Meetings.
(2) Council shall decide on the appeal no later than forty-five (45) days after the public hearing.
(3) Council by a three-fourths (3/4) vote of its members may overrule the Board decision.
(Ord. 2020-4053. Passed 1-7-21.)