The hearing examiner has jurisdiction over requests for variances from the requirements of Title 19, except for Chapter 19.33 and LMC Sections 19.22.003, 19.22.040, 19.22.050, 19.23.080, and 19.23.090 when such variances are not applied for in conjunction with an underlying project, the application for which will be heard by a different hearing body, as provided by Section 2.09.040. The decision of the hearing examiner shall be subject to closed record appeal to the city council as provided in Chapter 17.11 LMC. Applications for variances from the requirements of Title 19 that are made in conjunction with another project application for which an open record hearing is required shall be consolidated with that project application, and the hearing body hearing the underlying project application shall also issue a decision on the variance application. Terms used in this chapter are defined in LMC Section 17.01.030.

(Ord. No. 1615, § 2, 11-1-2021; Ord. No. 25-1708, § 1, 6-2-2025)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.010 in its entirety to read as set out herein. Former § 19.47.010, titled "Established" derived from Ord. 1000, § A(part), adopted 1995.

Any property owner or developer may make a request to the hearing body authorized to hear such request for a variance from bulk provision of the zoning ordinance. The applicant shall appear at the public hearing, at the time and place fixed by the hearing body, in person, by agent or by attorney.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.020 in its entirety to read as set out herein. Former § 19.47.020, titled "Membership appointment term-compensation vacancy—Removal" derived from Ord. 1000, § A(part), adopted 1995.

Any interested or aggrieved person or persons, jointly or severally, and any officer or official of any department, board or commission of the city, jointly or severally, may support or oppose, in writing, any applicant's request for a variance. The written statement shall specify the reasons for supporting or opposing the applicant's request, contain the signature and description of the land of each property owner, and be submitted timely to the hearing body.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.030 in its entirety to read as set out herein. Former § 19.47.030, titled "Meetings—Notice—Rule promulgation—Records—Quorum" derived from Ord. 1000, § A(part), adopted 1995.

Unless stated otherwise in this chapter, the notice and procedural requirements for variance proceedings shall be substantially the same as an appeal before the hearing examiner brought under Chapter 17.11 LMC, and shall be conducted consistent with Chapter 17.09 LMC.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.040 in its entirety to read as set out herein. Former § 19.47.040, titled "Special exception or variance—Request—Hearing" derived from Ord. 1000, § A(part), adopted 1995.

A request to a hearing body for a variance from the requirements of Title 19 stays all proceedings, in furtherance of the action for which the variance is sought. However, upon a motion by a party, the hearing body may make a finding supported by clear, cogent, and convincing evidence that a stay would cause imminent peril to life or property, in which case such action shall not be stayed other than by an order issued by the Superior Court.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.050 in its entirety to read as set out herein. Former § 19.47.050, titled "Special excpetion or variance—Opposition petition" derived from Ord. 1000, § A(part), adopted 1995.

Where unnecessary hardships and practical difficulties render it difficult to carry out a bulk provision of the zoning ordinance, the hearing body may grant a variance in harmony with the general purpose and intent of the provisions contained in this title from any rules, regulations or provisions of the zoning ordinance relating to the bulk provisions of the zoning ordinance, so that the spirit of the ordinance will be observed, public safety secured, and substantial justice done. However, the hearing body may only grant a variance if it finds that all of the following conditions exist for each variance application:

A.

The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application is located;

B.

That such variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located; and

C.

That the granting of such a variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.060 in its entirety to read as set out herein. Former § 19.47.060, titled "Special exception or variance—Review by board" derived from Ord. 1000, § A(part), adopted 1995.

Hearings on variance requests shall be open record hearings and shall follow substantially the same format as provided in Section 17.09.060. Notice and other procedural elements shall be as provided in the other applicable Sections of Title 17, including Chapter 17.11 LMC.

The hearing body's decision shall be in substantially the same form as a decision on an appeal under Title 17 and shall include written findings of facts, conclusions of law, and decision. The findings of fact shall include pertinent information regarding any existing or preexisting conditions relating to topography, geology, utilization, and such conditions set forth by the official plans, development plans, and the comprehensive plans, and relevant facts which support and oppose the contention of the applicant. The hearing body's decision on a variance request may grant the variance, deny the variance, or grant the variance with conditions. The hearing body's decision may be subject to reconsideration under the same process set forth in Section 17.09.080.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.070 in its entirety to read as set out herein. Former § 19.47.070, titled "Special exception or variance—Application procedure" derived from Ord. 1000, § A(part), adopted 1995.

Section 17.09.100(B) provides the effective date of the decision, unless the hearing body makes a finding that making the decision effective immediately is necessary for the preservation of property or personal rights. If the hearing body's decision is associated with a pending permit application, the decision shall cease to be effective on the same date said application expires without having been granted. Otherwise, if the applicant does not obtain a building permit and/or occupancy permit within one year from the effective date of the effective date of the final decision of the city, the decision shall cease to be effective.

(Ord. No. 1615, § 2, 11-1-2021)

Editor's note— Ord. No. 1615, § 2, adopted Nov. 1, 2022, amended § 19.47.080 in its entirety to read as set out herein. Former § 19.47.080, titled "Special exception or variance—Stay authorized when" derived from Ord. 1000, § A(part), adopted 1995.

Where there are unnecessary hardships and practical difficulties which render it difficult to carry out the provision of the zoning ordinance, the board shall have power, in passing upon requests therefor, to grant a variance in harmony with the general purpose and intent of the provisions contained in this title, and such variances may vary any rules, regulations or provisions of the zoning ordinance relating to the use of land and/or structures and any construction, structural or equipment changes, or alteration of structures relating to the zoning ordinance, so that the spirit of the ordinance will be observed; public safety secured; and substantial justice done. However, the board shall not vary any of the rules, regulations or provisions of the ordinance codified in this title unless it shall find that all of the following conditions exist in each case of a request for a variance from the provisions of this title:

A.

The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application is located;

B.

That such variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with rights and privileges permitted to other properties in the vicinity and zone in which the subject property is located;

C.

That the granting of such a variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is located.

(Ord. 1000 § A(part), 1995).

The board's findings shall include a report, in which a comparison is made of the appellant's request for a variance in harmony with the provisions of the zoning ordinance, and of the present land utilization pattern within the neighborhood area of the appellant's land. Such report may contain other pertinent information regarding any existing or preexisting conditions relating to topography, geology, utilization, and such conditions set forth by the official plans, development plans, and the comprehensive plans, as may be included in the board's findings. The board's findings shall include all of the relevant facts which support and oppose the contention of the appellant.

(Ord. 1000 § A(part), 1995).

The decision of the board granting or denying a special exception and/or variance, shall not become final until the expiration of five days from the date of entry of such decision in the official records of the board, unless the board shall find that the making of the decision effective immediately is necessary for the preservation of property or personal rights, and shall so certify on the record; and if a building permit and/or occupancy permit is not obtained by the appellant within one year from the date of the board's decision, the board's decision shall cease to be effective. The decision of the board shall be final, subject to review by the Superior Court.

(Ord. 1000 § A(part), 1995).