§ 11.04.02. Standards

A.

Findings Required; Conditions

1.

A variance may only be allowed by the Land Use Hearing Officer in cases involving practical difficulties or unnecessary hardship, when substantial evidence in the official record of the hearing supports specific findings.

2.

All findings of fact shall be made in the indicated order by the Land Use Hearing Officer, which is not empowered to grant a variance without an affirmative finding of fact on all six categories in 11.04.02 B below. Each finding of fact shall be supported by substantial evidence in the record.

3.

The Land Use Hearing Officer may impose reasonable conditions upon the granting of any variance to insure that the public health, safety, and general welfare shall be protected and substantial justice done. Violation of such conditions shall be a violation of this Code.

B.

Specific Required Findings

The following specific findings must be made by the Land Use Hearing Officer prior to approving an application for a Variance:

1.

That the alleged hardships or practical difficulties are unique and singular as regards the property of the person requesting the variance and are not those suffered in common with other property similarly located.

2.

That literal interpretation of the provisions of this Code would deprive the applicant of rights commonly enjoyed by other properties in the same district and area under the terms of this Code.

3.

That the variance, if allowed, will not substantially interfere with or injure the rights of others whose property would be affected by allowance of the variance.

4.

That the variance is in harmony with and serves the general intent and purpose of this Code and the Comprehensive Plan.

5.

That the situation sought to be relieved by the variance does not result from an illegal act or result from the actions of the applicant, resulting in a self-imposed hardship.

6.

That allowing the variance will result in substantial justice being done, considering both the public benefits intended to be secured by this Code and the individual hardships that will be suffered by a failure to grant a variance.

C.

Provisions for Variations from Regulations Applying Generally in SPI Districts

In connection with special plan review requirements, regulations for a particular SPI district or for specified classes of SPI districts may also authorize or deviate from regulations applying generally within such districts.

D.

Provisions for Variations from Regulations Applying to Special Uses

Regulations for a particular Special Use may be varied where the Land Use Hearing Officer makes a finding in the particular case, that public purposes are satisfied to an equivalent or greater degree. Any related variances to Special Use standards must be heard by the Land Use Hearing Officer and cannot be acted on administratively prior to the Special Use being approved.

E.

Provisions for Variations from Regulations Applying to the Preservation Requirements for Upland Significant Wildlife habitat.

1.

A variance from the onsite preservation requirements of Section 4.01.08 may be granted if the Land Use Hearing Officer finds that the strict enforcement of the regulation would diminish the value of the property to the extent that all economically viable use is precluded. Any variance granted pursuant to this section shall be conditioned upon the preservation of suitable land offsite in accordance with the requirements of Section 4.01.13, unless a variance from the offsite preservation requirements is applied for an received pursuant to Section 11.04.02.E.2 below. In reviewing each request for a variance, the Land Use Hearing Officer shall consider:

a.

The fair market value of the property in the absence of the regulation, based on those uses which are reasonably probable, legal, physically possible, appropriately supported, and financially feasible. For purposes of this section, the use of land is "reasonably probable" if there is a demand for such use in the reasonably near future.

b.

The fair market value of the property when the regulation is applied, based on those remaining uses of the property which are reasonably probable, legal, physically possible, appropriately supported, and financially feasible.

c.

The extent to which additional value can be realized from the preserved area by utilizing available site planning techniques (e.g., clustering), transfer or purchase of development rights, park impact fee or open space credits, tax incentives, and other such methods and programs.

d.

The extent to which a variance will adversely will adversely impact any upland habitat areas lying adjacent to those lands for which a variance is being sought, whether located on the same parcel or on an adjacent parcel, in terms of habitat viability manageability, or ability to function as a wildlife corridor.

2.

A variance from the offsite preservation requirements of Section 4.01.13 may be granted if the Land Use Hearing Officer finds that strict enforcement of the regulation renders all reasonable development of the parcel, for which offsite preservation is required, economically unfeasible, where the use proposed for that parcel is reasonably probable, legal, physically possible, appropriately supported, and financially feasible.

a.

In order to be eligible for a variance from the offsite preservation requirements, the applicant must first have used best efforts in cooperation with the County to identify a suitable, economically feasible offsite parcel or other option which would satisfy the offsite preservation requirements.

b.

In deciding whether to grant a variance from the offsite preservation requirements, the Land Use Hearing Officer shall further consider whether there are suitable alternative sites or options which could be utilized by the applicant to reduce the costs of complying with the offsite preservation requirements. If such a parcel or option is available, and the cost-reducing benefit of utilizing that parcel or option would offset the costs of offsite preservation to the extent that development of the onsite parcel is rendered economically feasible, then the variance shall be denied.

F.

Provisions for Variations from Regulations Applying to the Removal of Grand Oaks with a condition rating of good or better in accordance with the Tree Condition Evaluation Form.

1.

A variance from the requirement of preservation of grand oaks with a condition rating of good or better in accordance with the Tree Condition Evaluation Form may be granted if the Land Use Hearing Officer finds that strict enforcement of the regulation would preclude reasonable use of a parcel of property. For purposes of this section, reasonable use shall mean an actual, present use activity on a parcel of real property (including periods of inactivity which are normally associated with, or are incidental to, the nature of type of use or activity), or such reasonably, nonspeculative land uses which are suitable for the subject parcel of property, which are compatible with adjacent land uses, and which have created an existing fair market value in the parcel of property greater than the fair market value of the actual, present use or activity on the parcel of property. In determining whether the strict enforcement would preclude the reasonable use of a parcel of property, the following factors shall be considered by the Land Use Hearing Officer:

a.

The land use classification of the parcel of property on which the tree is located;

b.

Any prior or existing development on or use of the property (including the applicable zoning, permitting and subdivision history of that parcel);

c.

The impact of the grand oak on the buildable area of a parcel as shown by a survey or scaled drawing of the parcel of property accurately depicting the location of the grand oak and its impact on the buildable area of that parcel of property;

d.

Any special circumstances affecting the development of that parcel of property, including without limitation, any unusual topography and fill requirements;

e.

Existing uses of development patterns on similarly situated property located adjacent to or near the parcel of property in question;

f.

Any effort by the permit applicant to redesign the proposed development, structure or use in a manner to retain or preserve the grand oak.

g.

Any other information that would be pertinent in determining whether the removal of a grand oak is required to allow reasonable use of a parcel including without limitation, bona fide, valid appraisals of the fair market value of the parcel of property in question and a bona fide valuation of the grand oak to be removed based on generally accepted standards (such as those published by the International Society of Arbiculture).

(Ord. No. 97-18, § 2, 12-18-97; Ord. No. 00-21, § 2, 5-18-00; Ord. No. 01-30, § 2, 11-15-01; Ord. No. 03-9, § 2, 6-5-03)