(1) Variance Defined: A variance is a modification of the bulk and placement requirements of the zoning ordinance as to one or more of the following items only:
A. Minimum lot area (square feet);
B. Minimum lot width;
C. Minimum lot frontage;
D. Minimum front yard setback;
E. Minimum rear yard setback;
F. Minimum interior side yard setback;
G. Minimum street side yard setback;
H. Maximum building height;
I. Minimum required parking spaces;
J. Any other zoning ordinance provision affecting the size or shape of a structure or building or the placement of a structure or building upon a lot, or the size of lots.
(2) Application Process For A Variance:
A. An application obtained from the planning and zoning department, requesting a variance, shall be completed and submitted, along with all required attachments, to the planning and zoning department, at least thirty-five (35) calendar days prior to the public hearing date.
B. The applicable fees, as set forth by council, shall be paid at the time of submittal of the application.
C. A neighborhood meeting shall be held as per section 10-03-12 of this article.
(3) Hearing Process For A Variance:
A. At least one public hearing before the commission, in which the applicant and property owners adjoining the subject property shall have an opportunity to be heard, shall be held.
B. At least fifteen (15) calendar days prior to the hearing, notice of the time and place, and a summary of the proposal shall be published in the official newspaper or paper of general circulation within the jurisdiction.
C. Notice shall be posted on the premises not less than seven (7) calendar days prior to the hearing.
D. At least fifteen (15) calendar days prior to the hearing, notice shall be mailed to the applicant and to property owners or purchasers of record adjoining the subject property.
(4) Granting A Variance:
A. A variance shall only be granted when all of the following hold true:
1. There has been a showing of undue hardship because of characteristics of the site which are either:
(A) Size, location, configuration or dimensions of the site; or
(B) Topographic or other physical site conditions which render the site unique from adjoining properties.
2. Granting of the variance does not constitute a right or special privilege by the applicant.
3. Granting of the variance is not in conflict with the public interest.
4. Granting of the variance will not be injurious to the property or improvements of adjacent property owners or interfere with the enjoyment of such property or improvements thereon.
5. Granting of the variance will not be materially detrimental to the public health, safety or welfare.
B. Denial of a variance request or approval of a variance request with conditions unacceptable to the applicant may be subject to the regulatory taking analysis provided for by section 67-8003 of the Idaho Code, consistent with the requirements established thereby.
(5) Appeal Process For A Variance:
A. The applicant or any property owner adjacent to the subject property may appeal the decision of the commission, or any condition of approval of the variance, provided an appeal application is obtained from the city clerk and completed and filed with the city clerk within fifteen (15) calendar days of the signing of the order of decision for the variance, along with the appropriate fee as set forth by council.
B. The council shall hold a public hearing using the public hearing notice and procedures as set forth for the commission in accordance with subsection (3) of this section. The council may approve, disapprove or modify the action of the commission and shall do so in accordance with section 01-05-11 of this code.
C. Should the applicant desire an amendment to a condition of approval after the appeal period has passed, an application requesting an amendment to a condition of approval shall be obtained from the city clerk, completed by the applicant and submitted to the city clerk, along with the applicable fee, and a public hearing shall be held before the council using the public hearing notice and procedures as set forth for the commission in accordance with subsection (3) of this section. The council may amend the condition of approval, delete the condition of approval entirely, or leave the condition in place as approved by the commission, and shall do so in accordance with section 01-05-11 of this code. (Ord. 2739, 6-16-2008)