(a)

Review by the commission of a decision of the director, may be requested by filing a notice of appeal stating with particularity the grounds therefor with the department within 20 days of the date of the decision appealed. The notice shall be considered by the commission at a regular scheduled meeting. The department and any aggrieved person, including the developer, may appear at that meeting and explain to the commission why it should hear the appeal. The appeal shall be heard unless it presents only minor or routine issues and is clear from the notice of appeal and any evidence offered at the consideration thereof, that the decision appealed was supported by substantial evidence and involved no policy error or abuse of discretion.

(b)

If the commission decides to hear the appeal, it shall announce whether it intends to review the entire decision, or merely a portion thereof and whether review shall be de novo or on the record. If the commission decides to hear the appeal, it shall give public notice thereof in a newspaper of general circulation in the municipality. The department shall prepare the record on appeal, which shall consist of the original application and supporting materials, written public comment thereon, and all notes, memoranda, minutes and other department material in relation thereto. The burden of proof in the appeal shall be on the party challenging the decision of the director. In a hearing de novo, proof shall be established by a preponderance of the evidence. If the appeal is heard on the record, argument may be heard, but no evidence outside the record shall be admitted and the decision of the department shall be upheld if there is substantial evidence in support thereof and no policy error or abuse or discretion therein. The commission may confirm, reverse, or modify the director's decision, or change the conditions which the director placed on approval. The commission shall support its action with written findings.

(c)

Upon its own motion, the commission may certify a case directly to the assembly without review, hearing or recommendation.

(Serial No. 87-49, § 2, 1987; Serial No. 92-10, § 3, 1992; Serial No. 95-35, § 4, 1995; Serial No. 97-01, § 6, 1997)

Appeal to the assembly is a matter of right. Unless ordered otherwise by the commission or the assembly, a decision by the commission shall not be stayed pending appeal, but action by the appellee in reliance on the decision shall be at the risk that the decision may be reversed on appeal. The appeal of a commission decision not to hear a case shall be limited to that issue, the remedy for which shall be a remand to the commission for a hearing on the merits of the case. Appeals shall be conducted according to chapter 01.50 of this Code, except as provided in this section.

(Serial No. 87-49, § 2, 1987; Serial No. 91-41, § 2, 1991)

Pursuant to this article, a variance may be granted to provide an applicant relief from the requirements of this title. A variance is prohibited from varying any requirement or regulation of this title concerning the use of land or structures, housing density, lot area, requirements in chapter 49.35, or requirements in chapter 49.65. Applications for prohibited variances shall not be accepted for filing or shall be rejected by the director.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018)

Except as provided in this article for an administrative variance, an application for a variance shall be submitted to the planning commission through the department.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018; Serial No. 2021-19, § 4, 8-2-2021, eff. 9-1-2021)

(a)

An application for an administrative variance shall be administered by the department.

(b)

If the director determines that the request is not for an administrative variance and the application is complete, it shall be scheduled for public hearing. If the application is filed in conjunction with a major development permit, a separate public notice shall not be required and the variance fee shall be reduced by 20 percent. For separate variance applications, a fee and public notice according to section 49.20.230 shall be required.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018)

(a)

Upon determination that the administrative variance application is complete, the director shall mail notice of the application to the immediately adjoining property owners, as determined by the director, and provide at least 14 days to submit written comments before issuing a decision.

(b)

For variances other than administrative, public notice according to section 49.15.230 shall be given prior to a hearing on the application by the planning commission.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018; Serial No. 2021-19, § 4, 8-2-2021, eff. 9-1-2021)

The planning commission shall hear all variance requests except administrative variances, and shall either approve, conditionally approve, modify, or deny the request based on the criteria in section 49.20.250(b).

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018; Serial No. 2021-19, § 4, 8-2-2021, eff. 9-1-2021)

(a)

Administrative variances.

(1)

An administrative variance may be granted to allow projections not to exceed 25 percent of the yard setback requirements of this title or two feet, whichever is less, upon the director determining the following:

(A)

Enforcement of the setback ordinance would result in an unreasonable hardship;

(B)

The grant of the variance is not detrimental to public health, safety, or welfare; and

(C)

The grant of the variance is narrowly tailored to relieve the hardship.

(2)

An administrative variance decision by the director may be appealed if a notice of appeal is filed within 20 days of the date the decision is signed by the director, in accordance with section 49.15.239.

(b)

Non-administrative variances.

(1)

A variance may be granted to provide an applicant relief from requirements of this title after the prescribed hearing and after the planning commission has determined that:

(A)

Enforcement of the ordinance would create an undue hardship resulting from the unusual or special conditions of the property;

(B)

The unusual or special conditions of the property are not caused by the person seeking the variance;

(C)

The grant of the variance is not detrimental to public health, safety, or welfare; and

(D)

The grant of the variance is narrowly tailored to relieve the hardship.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018; Serial No. 2021-19, § 4, 8-2-2021, eff. 9-1-2021)

The planning commission may attach to a variance conditions regarding the location, character, and other features of the proposed structures or uses as it finds necessary to carry out the intent of this title and to protect the public interest.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018; Serial No. 2021-19, § 4, 8-2-2021, eff. 9-1-2021)

Expiration and extensions of variances shall be governed by the procedures and standards established for development permits in chapter 49.15, article II.

(Serial No. 2018-04(b), § 2, 5-14-2018, eff. 6-14-2018)

The planning commission is authorized to interpret the zoning map and the text of this title and to pass upon questions of lot lines or district boundary lines and similar questions presented by the department or a property owner directly concerned.

(Serial No. 87-49, § 2, 1987; Serial No. 2021-19, § 5, 8-2-2021, eff. 9-1-2021)

An application for a map or text interpretation shall be submitted to the planning commission by filing a copy of the application with the director in the department of community development. The application shall contain information sufficient to enable the commission to make the necessary interpretation. The interpretation shall be scheduled for consideration by the commission. Individual mailed notice of boundary line interpretations shall be provided to adjacent property owners.

(Serial No. 87-49, § 2, 1987; Serial No. 2021-19, § 5, 8-2-2021, eff. 9-1-2021)

(a)

The director may determine that a use not specifically listed in the table of permissible uses may be permitted if all the following findings can be made:

(1)

The use is consistent with the Comprehensive Plan and other relevant officially adopted plans;

(2)

The use will not be detrimental to public health, safety, or welfare;

(3)

The use is consistent with the intentions of the underlying zone district;

(4)

The use is similar to other uses allowed in the underlying zone district;

(5)

The density or intensity of the use is similar to other uses in the underlying zone district; and

(6)

The use is compatible with principally and conditionally permitted uses in the underlying zone district.

(b)

When the director determines that a proposed use is equivalent to a listed use, the proposed use will be treated in the same manner as the listed use with respect to development standards, permits required, and all applicable requirements of Title 49.

(c)

Director determinations will be in writing and maintained by the department for public review.

(d)

The director may refer any equivalent use determination to the planning commission for review and final decision.

(e)

Equivalent use determinations by the director may be appealed to the planning commission.

(Serial No. 87-49, § 2, 1987; Serial No. 2021-19, § 5, 8-2-2021, eff. 9-1-2021; Serial No. 2025-15am, § 2, 4-7-2025, eff. 5-6-2025)