A. The City Council may grant variances from these regulations when, due to the characteristics of land proposed for subdivision, strict compliance with these standards would result in undue hardship and would not be essential to the public welfare. A variance will not be granted if it would have the effect of nullifying the intent and purpose of these regulations. Any zoning deviations utilized as incentives received with an approved Housing Mitigation Plan pursuant to section 11-1A-5 of this Code are not subject to the provisions of this subsection and are not required to obtain a variance.
B. Prior to City Council consideration of any variance, a public hearing must be held before the Planning Board and City Council in accordance with the procedures outlined in this chapter. However, these regulations do not require a public hearing for a minor subdivision requesting a variance to these standards. Neither a preliminary plat reviewed under the expedited process or a minor subdivision, waiver of preliminary plat are eligible for a variance request.
C. The City Council will not approve a variance unless it finds the following criteria can be met or does not apply to the particular situation:
1. The granting of the variance will not be detrimental to the public health, safety, or general welfare or injurious to other adjoining properties;
2. Due to the physical surroundings, shape, or topographical conditions of the property involved, strict compliance with the regulations will impose an undue hardship on the owner;
3. Undue hardship is not based exclusively on a personal or financial hardship, or any hardship that is self-imposed;
4. The variance will not cause a substantial increase in public costs; and
5. The variance will not place the subdivision in nonconformance with any adopted zoning regulations, growth policy or other adopted policies or regulations.
D. The subdivider must include the request(s) with the submission of the preliminary plat along with a written statement describing and justifying the requested variance based on the evaluation criteria. The Planning Board and/or City Council will consider the requested variance at the public meeting or hearing on the preliminary plat and make its decision based upon the evaluation criteria. In granting variances, the City Council may impose reasonable conditions to secure the objectives of these regulations.
E. Findings to support a variance that do not circumvent the purpose of these regulations may be granted for innovative designs including, but not limited to, improved opportunities for affordable housing, accessibility for persons with disabilities, preservation of the natural environment, energy conservation and transportation efficiency.
F. When a variance is granted, the motion to approve the proposed subdivision must contain a statement describing the variance and facts, conditions and findings upon which the issuance of the variance is based.
G. The City Council will not, by variance, permit subdivision for building purposes in areas located within the floodway of a flood of 100-year frequency as defined by Montana Code Annotated title 76, chapter 5. (Ord. 09-23, 11-16-2009; amd. Ord. 19-11, 6-3-2019; Ord. 21-11, 8-16-2021)