This Chapter provides standards and procedures for variances and non-conforming situations (i.e., existing uses or development that do not comply with the Code). This code cannot provide standards to fit every potential development situation. The City’s varied geography, and complexities of land development, require flexibility. Chapter 5 provides that flexibility, while maintaining the purposes and intent of the Code. The variance procedures provide relief from specific code provisions when they have the unintended effect of preventing reasonable development in conformance with all other codes. The standards for non-conforming uses and development are intended to provide some relief from code requirements for older developments that do not comply.

Hardships may result from the size, shape, or dimensions of a site or location of existing features thereon, geographic or topographic or other physical conditions on the site or in the immediate vicinity. The Planning Director or designee, through an administrative review or the Planning Commission through a Public Hearing process may grant a variance to overcome these hardships.

A.    The following regulations of the Development Code shall not be varied:

1.    The uses permitted in the land use district.

2.    Definitions.

3.    The minimum and maximum residential development density allowed in a land use district.

4.    Uses or developments that are “prohibited” by this code.

B.    A variance shall not be granted when special circumstances upon which the applicant relies are a result of the actions of the applicant or owner or previous owner(s), including but not limited to:

1.    Self-created hardships.

2.    Willful or accidental violations.

3.    Manufactured hardships.

The following types of minor variances shall be processed using a Type II procedure, as governed by Chapter 4.1. and using the approval criteria in Section 5.1.500. Minor Variances are limited to lot setbacks, landscaping, tree preservation or sign standards, including up to a 20 percent change to the setback standard required in the base land use district, up to 20 percent reduction in landscape area, or up to a 20 percent difference in sign size. [Ord. 497 § 2 (Exh. B), 2019].

Major Variances involve discretionary decision-making and apply to all Variances that are not Minor Variances. A Major Variance shall be processed using a Type III procedure, as governed by Chapter 4.1, using the approval criteria in Section 5.1.500, herein. In addition to the application requirements contained in Chapter 4.1.500, the applicant shall provide a written narrative or letter describing his/her reasoning for the variance, why it is required, alternatives considered, and compliance with the criteria in Section 5.1.500.

A.    The Community Development Director or designee, through an administrative review (Type II) or the Planning Commission through a Public Hearing (Type III) shall approve, approve with conditions, or deny an application for a variance based on finding that all of the following criteria are satisfied:

1.    That any Variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and district in which the subject property is situated; and

2.    That because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings, preservation of significant trees, the strict application of the zoning law is found to deprive subject property of privileges enjoyed by other properties in the vicinity and under identical zone classification;

3.    That the granting of the variance will not be contrary to the intent of this Chapter or to the public safety, health and welfare, or quality of natural resources or injurious to other properties in the vicinity; and,

4.    The variance requested is the minimum variance which would alleviate the hardship.

A.    Approval Period. Unless otherwise specified at the time of approval, a variance approval shall be valid for one (1) year.

B.    Extension. A variance approval may be extended for good cause at the discretion of the approving authority responsible for the original decision. The applicant shall submit the request for extension in writing to the Community Development Department prior to expiration of the initial variance provided that no changes are made to the original approval.

C.    Appeals. Appeals to variance decisions shall be processed in accordance with the provisions of Chapter 4.1.

D.    Revocation for Noncompliance. Any variance may be revoked by the Planning Commission for noncompliance with conditions set forth in the original approval, after first holding a public hearing and giving written notice of such hearing to the grantee. The recipient of the revoked permit may appeal the revocation decision in the manner prescribed within the Type III appeals, section 4.1.

A variance may be amended, extended, varied or altered only pursuant to the standards and procedures for the original approval of a variance. An application for the same variance on the same site may not be considered within twelve months of the date of final action on the prior application.

Within thirty (30) days after the entry of the variance order, the permit application file number shall be indicated on the officially adopted zoning map on the lot or lots affected by such variance permit.

The purpose of this chapter is to allow nonconformities to continue, but to ultimately bring all uses, buildings, and structures into conformance with this Development Code and the Comprehensive Plan. [Ord. 528 § 4 (Exh. L), 2023].

A use that was legally allowed when established, but which is no longer permitted in the zone in which it is located, or a use that was legally established in one zone and rezoned to another zone that permits that use conditionally, but hasn't received conditional use permit approval, may continue so long as it complies with all of the following requirements:

A.    Expansion. A non-conforming use shall not be expanded or moved to occupy a different or greater area of land, building, or structures than the use occupied at the time it became non-conforming.

B.    A non-conforming use may be replaced with another use even though the building or site does not meet the standards of this Code. However, such substitution is to occur only when the new use is designated as permitted or conditionally permitted for the zone in which the property is located.

C.    Discontinuance. If a non-conforming use is discontinued for any reason for more than twelve (12) consecutive months, any subsequent use shall conform to all of the regulations of the subject zone. For purposes of calculating the twelve (12) month period, a use is discontinued or abandoned upon the occurrence of the first of any of the following events:

1.    On the date when the use of land is physically vacated;

2.    On the date the use ceases to be actively involved in the sale of merchandise or the provision of services;

3.    On the date of termination of any lease or contract under which the non-conforming use has occupied the land; or

4.    On the date a request for final reading of water and power meters is made to the applicable utility districts. [Ord. 533 § 3 (Exh. S), 2023; Ord. 528 § 4 (Exh. L), 2023].

A.    Continuation. A non-conforming structure that was allowed when established, but is no longer permitted in the subject zone because it does not conform to the existing height, setback, coverage, or other requirements, may continue so long as it complies with all of the following requirements:

1.    The structure is not enlarged, moved, or altered in a way that increases its nonconformity; however, the structure may be altered to decrease in nonconformity.

2.    If a non-conforming structure is moved, it must conform to the standards of the zone to which it is moved.

3.    Residential Dwelling Units in the Downtown Commercial (DC) District

a.    Expansions

i.    Single-family detached dwelling units may expand up to 50% of the existing habitable square footage.

ii.    2 to 4 units may expand up to 35% of the existing habitable square footage.

iii.    5 or more units may expand up to 25% of the existing habitable square footage.

b.    Garages may be permitted and do not count towards the allowable square footage.

c.    All expansions shall comply with one of the following options;

i.    The setbacks in the Multi-Family Residential Table 2.3.1; or,

ii.    The setbacks in the Downtown Commercial District and the Western Frontier Architectural Design Theme.

d.    An expansion of no more than five hundred (500) square feet of gross floor area is permitted outright. An expansion greater than five hundred (500) square feet of gross floor area shall be processed with a Minor Conditional Use Permit and Site Plan Review.

B.    Maintenance and Repair. Ordinary maintenance and repair is permitted on any structure or portion of any non-conforming structure when:

1.    The proposed maintenance and repair is required to keep the building or structure in sound condition, provided however, that no structural alterations shall be made except those required by the Building Official.

2.    The proposed maintenance or repair does not enlarge, move, or alter the structure in a way that increases its nonconformity.

3.    The proposed maintenance or repair is not prohibited on the deed.

C.    Flood Hazard Areas. The provisions of this Section shall not relieve owners of property within mapped special flood hazard areas from complying with the flood hazard zoning provisions of Chapter 2.10 Special Flood Hazard Area Overlay District of this Code. [Ord. 533 § 3 (Exh. S), 2023].

If a non-conforming structure is damaged by any means, the structure may only be reconstructed or replaced to its pre-damage non-conforming state and the occupancy or use of such structure may be continued or resumed, provided such restoration is started within a period of one (1) year and is diligently pursued to completion. Otherwise, the structure shall be reconstructed in accordance with the provisions of this ordinance. [Ord. 533 § 3 (Exh. S), 2023].

No building as it exists at the time of the effective date of this Development Code shall be deemed to be non-conforming solely by reason of the lack of off-street parking spaces, provided that any portion of the premises being used for off-street parking in connection with any such building shall not be reduced below the requirements of the parking chapter. [Ord. 533 § 3 (Exh. S), 2023].

When a non-conforming use is changed to a permitted use and additional parking is required, the additional parking spaces shall be provided in accordance with the provisions of Chapter 3.3. However, the number of additional spaces shall be computed only to the extent of the enlargement or additional requirement, regardless of whether or not the number of previously existing spaces satisfies the requirements of this chapter. [Ord. 533 § 3 (Exh. S), 2023].

The purpose of this chapter is to address non-conforming uses that are subsequently made conforming by adding the use as a permitted use in the applicable zone or a zone change of the property to a zone where the non-conforming use on the property is permitted as well as instances where a lawfully established use is subsequently designated as a conditional use in applicable zone or the subject property is rezoned to a zone where the lawfully established use is allowed as a conditional use. [Ord. 528 § 4 (Exh. M), 2023].

A.    Continued Use. A non-conforming use subsequently designated as a permitted use is allowed to continue under the operating conditions at the time of the change notwithstanding any non-compliance with then applicable land use regulations.

B.    Alteration. Any alteration of a non-conforming use subsequently designated as a permitted use including, without limitation, the operating conditions, land, buildings, and structures associated with the use must comply with standards applicable at the time of alteration and any unmodified portion of the use must come into compliance to the extent reasonably practical. Such alterations may require site plan review approval under Chapter 4.2 SDC. [Ord. 528 § 4 (Exh. M), 2023].

A.    Continued Use. A non-conforming use subsequently designated as a conditional use is allowed to continue under the operating conditions at the time of the change notwithstanding any non-compliance with then applicable land use regulations.

B.    Alteration. Any alteration of a non-conforming use subsequently designated as a conditional use including, without limitation, the operating conditions, land, buildings, and structures associated with the use must comply with standards applicable at the time of alteration and any unmodified portion of the use must come into compliance to the extent reasonably practical. Such alterations will require conditional use approval under Chapter 4.4 SDC and may require site plan review approval under Chapter 4.2 SDC. [Ord. 528 § 4 (Exh. M), 2023].

A.    Continued Use. A lawfully established use subsequently designated as a conditional use is allowed to continue under the operating conditions at the time of the change notwithstanding any lack of conditional use approval or any non-compliance with any special standards associated with the conditional use.

B.    Alteration. Any alteration of a lawfully established use subsequently designated as a conditional use including, without limitation, the operating conditions, land, buildings, and structures associated with the use must comply with standards applicable at the time of alteration and any unmodified portion of the use must come into compliance to the extent reasonably practical. Such alterations will require conditional use approval under Chapter 4.4 SDC and may require site plan review approval under Chapter 4.2 SDC. [Ord. 528 § 4 (Exh. M), 2023].

For purposes of this Chapter, it will not be reasonably practical to achieve compliance where compliance requires the applicant to commit resources that clearly exceed the public benefit of achieving compliance. [Ord. 528 § 4 (Exh. M), 2023].