A. Applicability: A variance shall not be considered a right or special privilege but may be granted upon a determination by LUDC that the approval criteria are satisfied. A variance pursuant to this Chapter shall not apply to variances as described in Chapter 15.54 Flood Damage Prevention, nor shall it apply to parking requirements, or other deviations allowed in other sections of code. For purposes of this chapter, a variance is defined as the modification of the bulk and placement requirements of the Land Use Ordinance as to one (1) or more of the following items only:
1. Minimum lot area (square feet).
2. Minimum lot width and depth.
3. Minimum lot frontage.
4. Minimum front yard setback.
5. Minimum rear yard setback.
6. Minimum side yard setback.
7. Maximum building or structure height.
8. Any other land use 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.
B. General Requirements and Procedures:
1. Authority to Apply: Any person who owns or has a contractual interest in real property governed by this title may apply for a variance.
2. Deadline for Complete Applications is Twenty-Eight (28) Days before Hearing: Complete applications containing the required information and, in the format prescribed by the CSD and all fees as established by resolution of the Council shall be submitted to the CSD at least twenty-eight (28) calendar days before the desired hearing. If an application is deemed incomplete and additional information is required from the applicant, the CSD may remove the item from the desired meeting’s agenda. If upon review the CSD determines that an application is of such unusual complexity that more time is needed to thoroughly review and analyze an application to make findings and a recommendation to LUDC, the CSD may cause the application to be heard no later than one (1) regularly scheduled meeting after the originally anticipated meeting.
3. Notification Requirements: Notices for the public hearing shall be provided in accordance with section 18.28.010 C.
4. Public Hearing: A public bearing shall be held by LUDC in accordance with procedures adopted by Council resolution. At the public hearing, LUDC shall receive pertinent evidence concerning the proposal, particularly with respect to the standards of approval in Section 18.28.030 B.5.
5. Standards for Approving a Variance; written final decision required: A variance may be only approved if LUDC makes affirmative written findings of fact on each of the following standards:
a. The applicant has taken all reasonable steps to comply with the strict terms of the ordinance from which a variance is requested.
b. Granting of the variance is not a right or special privilege.
c. Granting of the variance is due to an undue hardship as related to the characteristics of the land, and the applicant has shown that absent a variance, they would be deprived of rights commonly enjoyed by other properties in the identical zoning district under the terms of the title.
d. Granting of the variance is the result of an undue hardship caused by the characteristics of the site and the creation of the hardship did not result from actions of the applicant, or the current, or a prior landowner, or any of their agents. In no event shall any variance be granted merely because compliance would diminish the financial return from use of the land in question or because it would reduce the market value of lands or because compliance with code would be financially costly.
e. Granting of the variance does not demonstrably adversely affect adjacent/nearby property.
f. Granting of the variance is not detrimental to the public health, safety, and welfare.
6. Precedents: The granting of a prior variance or referencing property developed under prior regulations is not admissible evidence for the granting of a new variance. Each request for a variance shall be judged on its own facts and circumstances.
7. Effective Date: The decision of LUDC shall be effective ten (10) calendar days from the date that the findings of fact and conclusions of law is approved by the Chair.
8. Application Resubmittal: No application for a variance that has been denied by LUDC shall be resubmitted in either the same or substantially same form less than one (1) year from the date of the final action, unless specifically authorized by LUDC, or the Council upon hearing an appeal.
9. Regulatory Tapings Analysis: Denial of a variance or approval of the same with conditions not acceptable to the landowner may be subject to a regulatory takings analysis provided for by Idaho Code section 67-8003, consistent with the requirements established thereby.
10. Variance Expiration: Authorization for an approved variance shall be valid for a period of one (1) year from the date of approval. The applicant must initiate implementation of the approved variance through construction within one (1) year from the date of approval. The approval shall become null and void in the event that implementation of the variance and all conditions are not initiated within said one (1) year period. A variance permit that has expired prior to implementation shall not be reestablished without a new variance being approved, unless the permit is otherwise extended under the terms of this chapter.
11. Time Extension. An applicant who has been granted a variance may request a time extension that does not exceed an additional six (6) month period. A request for a time extension must be submitted in writing to the CSD at least thirty (30) days prior to the expiration of the approved variance permit. The CSD may grant the request provided the applicant demonstrates good cause for the extension of the approved permit. Only one extension may be granted. A denial of a time extension by the Director may be appealed to LUDC in accordance with section 18.28.070.
12. Administrative Variance: The CSD may approve the modification of a setback, building height, lot coverage, or building footprint size requirements of this Title by up to ten percent (10%), in writing, subject to the following requirements:
a. The applicant must provide written consent from all adjoining property owners of record, signified by the owner’s signature on a form provided by the PWD; for purposes of this chapter, if one property owner of a property listed with multiple property owners provides written consent, this requirement shall be deemed satisfied for that property.
(1) The consent form shall clearly describe the nature of the proposed variance request and state that the property owner, by signing the form, is consenting to the variance request.
(a) If any of the adjoining owners fail to sign the form, then the administrative variance cannot be processed by the CSD.
(b) If the applicant fails to obtain all of the required signatures, they may at their own discretion, submit a variance application pursuant to this section.
b. The application meets the standards for approving a variance set forth in section 18.28.030 B.5. (Ord. 246 § 2, 1983: Ord. 241 § 7-3, 1983: Ord. 832, 2021: Ord. 845 § 13, 2022)