§ 105-59. Variance—Procedures.

(a)

Variance requests from the requirements of this article shall be submitted on an application form as prescribed by the Community Development Department or the Director's designee, along with such fees as shall be established by the Mayor and Council. The Director of the Community Development Department or the Director's designee shall coordinate the review of each variance request with all other affected city departments and shall forward such comments or recommendations as may be received to the Mayor and Council for action in their normal course of business. The review must include a recommendation from the Public Works Department.

(b)

This section describes how to apply for a variance from this division; however, any activity within a state waters' buffer must meet state requirements.

(c)

Variances may be granted in accordance with the following provisions:

(1)

If the project involves the construction of one single-family home for residential use by the owner of the subject property on a parcel that was platted prior to the effective date of the ordinance from which this article is derived, and its shape, topography or other existing physical condition prevents land development consistent with this article, and the Public Works Department finds and determines that the requirements of this article prohibit the otherwise lawful use of the property by the owner, the Mayor and Council may grant a variance from the buffer and setback requirements hereunder, provided such variance requires mitigation measures to offset the effects of any proposed land development on the parcel. The Mayor and Council are authorized to use a consent agenda to fulfill the terms of this subsection.

(2)

Except as provided above, the Mayor and Council shall grant no variance from any provision of this article without first conducting a public hearing on the application for variance and authorizing the granting of the variance by an affirmative vote of the Mayor and Council. The Community Development Department shall give public notice of each such public hearing in a newspaper of general circulation within the city at least once a week for two consecutive weeks before it is heard. The Community Development Department shall require that the applicant post a sign giving notice of the proposed variance and the public hearing at least 15 days prior to the date of the hearing. The sign shall be of a size and posted in such a location on the property as to be visible from the primary adjacent road right-of-way.

(3)

No application or reapplication for a variance affecting the same stream segment on a property shall be heard within 12 months from the date of last action by the Mayor and Council unless such 12-month period is waived by the Mayor and Council, and in no case may such application or reapplication be reconsidered in less than six months from the date of last action by the Mayor and Council.

(4)

Variances will not be considered when, following adoption of the ordinance from which this article is derived, actions of any property owner of a given property have created conditions of a hardship on that property.

(5)

Variances will be considered only in the following cases:

a.

The applicant provides evidence that impacts to the buffer have been avoided or minimized to the fullest extent practicable; and

b.

The project involves the construction or repair of a structure that, by its nature, must be located within the buffer. Such structures include dams and detention/retention ponds;

c.

Paved recreational foot trails and viewing areas, providing that impacts to the buffer are minimal;

d.

The proposed land disturbing activity within the buffer will receive a permit from the United States Army Corps of Engineers (USACE) under section 404 of the Federal Water Pollution Control Act Amendment of 1972, 33 USC 1344, and the Corps of Engineers has received a mitigation plan to be implemented as a condition of such a permit. In addition, land disturbing activities in the buffer that are outside the USACE's jurisdiction must be mitigated;

e.

The buffer intrusion is mitigated using the procedure established in the city stormwater design manual; or

f.

A valid and complete application for rezoning of the property is submitted prior to the effective date of the ordinance from which this article is derived and approval of the rezoning application by the Mayor and Council occurs after the effective date of the ordinance from which this article is derived, and the variance request is consistent with the intent of this article factoring into account the property owner's reliance on standards in effect at the time of the rezoning.

(Ord. No. 02-2006, art. 4, § 4.2, 2-2-2006)