Kalispell City Zoning Code
CHAPTER 27
32 VARIANCES
§ 27.32.010 Application.
Certain circumstances exist or arise wherein an unnecessary hardship is created through strict adherence to the provisions of these regulations. There is hereinafter provided provisions for the granting of a variance from the provisions of these regulations, so that the public welfare is secured and substantial justice can be done to those so affected. Application procedures for a variance follow:
(1)
Application for a variance may be filed by any property owner or their designated agent for the affected property.
(2)
Such application shall be made on a form provided by the office of the Zoning Administrator. Multiple requests for variance for the same project may be filed on a single application and charged a single fee.
(3)
The completed application and fee as set by the City Council shall be submitted to the Zoning Administrator.
(4)
The application must be complete and received with the required fee in the office of the Zoning Administrator at least 30 days prior to the next regularly scheduled meeting of the Board of Adjustment.
(5)
No part of any such fee shall be refundable after an application is filed and such fee paid, except under petition by the applicant and approval by the Zoning Administrator. No fee paid for an action which is declared closed or ruled invalid shall be refunded.
(Ord. 1677, 7-19-2010)
§ 27.32.020 Processing of Application.
(1)
Notice of the hearing shall be placed in a newspaper of general circulation in the community at least 15 days prior to the date of the hearing.
(2)
Written notice shall be mailed to all property owners within 150 feet of the subject property at least 15 days prior to the said hearing. (Where the subject property abuts a public right-of-way, the 150 foot measurement shall be in addition to this right-of-way along the abutting side.)
(3)
The Zoning Administrator shall transmit any appeal with all supporting materials to the Board of Adjustment within 3 days of the scheduled public hearing.
(4)
Before any variance can be granted, the Board shall make findings of fact based upon evidence produced at a public hearing setting forth and showing that the following circumstances exist:
(a)
In considering all proposed variances to this Zoning Ordinance, the Board shall, before making any findings in a specified case, first determine that the proposed variance will not amount to a change in the use of the property to a use which is not permitted within the district;
(b)
That special conditions and circumstances exist which are peculiar to the land such as size, shape, topography or location, not applicable to other lands in the same district and that literal interpretation of the provision of this Zoning Ordinance would deprive the property owner of rights commonly enjoyed by other properties similarly situated in the same district under the terms of this ordinance;
(c)
That the special conditions and circumstances do not result from the actions of the applicant;
(d)
That granting the variance requested will not confer a special privilege to the subject property that is denied other lands in the same district;
(e)
That granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated;
(f)
The Board of Adjustment shall further make a finding 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;
(g)
The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this Zoning Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; and
(h)
The fact that property may be utilized more profitably will not be the sole element of consideration before the Board of Adjustment.
(5)
Every decision of the Board of Adjustment shall be made by motion and shall be based upon "Findings of Fact" and every finding of fact shall be supported in the record of its proceedings. The enumerated conditions required to grant a variance under these regulations shall be construed as limitation on the power of the Board to act.
(6)
In approving a variance, the Board may impose such conditions as are in its judgment necessary to promote the general provisions of these regulations.
(7)
It shall take the affirmative vote of 4 members of the Board to grant a variance.
(8)
A hearing may be continued at the request of the applicant or upon motion of the Board; provided however, that the granting of the continuance is a matter of grace, resting solely in the discretion of the Board, and a refusal to continue is not a denial of a right, conditional or otherwise.
(9)
Decision on continuance of a hearing can be reached by a simple majority; but must be made prior to voting on the application itself.
(10)
A variance shall be valid indefinitely, provided it is exercised within one year of the date of issuance, or as otherwise provided for by the Board of Adjustment.
(Ord. 1677, 7-19-2010)
§ 27.32.030 Appeal from Board of Adjustment.
(1)
A request may be re-heard only when there has been a manifest error affecting the Board's decision; or it appears that a substantial change in facts, evidence or conditions has occurred. Such determinations shall be made by the Zoning Administrator within 60 days of final action by the Board.
(2)
Any person aggrieved by any decision of the Board of Adjustment may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or part, specifying the grounds of illegality. Such petition shall be presented to the court within 30 days after the filing of decision in the office of the Board of Adjustment. Appeals from the Board of Adjustment to a court of record are governed by Section 76-2-327 MCA.
(Ord. 1677, 7-19-2010)