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Zoning Variance

More Questions? Contact the Zoning Division at 343-7942

What do I need to apply?

In order for the Planning Department to accept a variance petition the following are required:

  1. Original Zoning Variance Application with original signatures.
  2. 35 sets of the following:
    • The completed Application for Zoning Variance.
    • If the property is under a pending sale, additional information regarding the new owner and lender is required.
    • Legible, to scale, and recent as-built of the property, no more than 2 years old at date of application.
    • A Letter of Authorization is required from the property owner if someone else is to represent the owner at the public hearing.
  3. The application fee.

The following items are optional but often assist the Zoning Board and the Planning Department:

  • Photos showing the extent and nature of the encroachment are helpful, especially those with captions indicating which view is shown.
  • Building floor plans and elevations.
  • Letters of non-objection from neighbors are useful in proving that the variance is not injurious to the surrounding neighborhood.

Do I need a professional to represent me?

Hiring a professional to manage your variance petition should depend on the complexity of the variance and your budget. Often the property owner can more than adequately present is his/her case to the Zoning Board. However, if you decide you need professional help, petitioners most often select a private planner, attorney, or surveyor to advise and/or represent them.

What is an administrative variance?

Certain very minor "after-the-fact" encroachments may eligible for consideration through a no public hearing process. The applicant must prove 4 conditions have been met including a statement the encroachment was an unintentional construction mistake. The variance can only be granted with the concurrence of the Building Official and the Planning Director. Since there is no hearing, the time to process an administrative variance is much shorter. The Planning Department can determine if your encroachment is eligible for this process.

How long will it take?

The Planning Department operates a first come first served system for scheduling variance petitions. The minimum amount of time for a petition turned in and accepted to the public hearing is about 45 days. However, if there are more petitions than the Zoning Board can hear in one meeting the Planning Department then fills each scheduled meeting in order. If the Zoning Board's docket is filled for many meetings, the amount of time between turning in a petition and its public hearing depends on the number of petitions in line ahead of it.

What is the likelihood that my variance will be approved?

A variance is, in essence, permission to break the zoning law to give a defective property parity with neighboring properties. To insure that breaking the zoning laws is allowed only when it is absolutely required, a set of 7 standards are to be met. If you can prove to the Zoning Board your variance meets the 7 standards it will be granted. If not, it will be denied.

What happens before the public hearing?

To get ready for the public hearing the Planning Department does the following:

  1. Gives you one or more placards to post on the property. The placards must be posted at least 21 days before the public hearing.
  2. Assigns a case number to the variance for tracking and reference purposes.
  3. Sends a copy of your petition to a number of public agencies and the local Community Council for comment. The primary public agencies are Public Works Land Use Enforcement and the public utilities.
  4. Mails a "Notice of Public Hearing" to each of your neighbors within a minimum of 500 feet of your property.
  5. The planner assigned to your variance will visit the property and may take photographs.
  6. A report is written and published to advise the Zoning Board of Examiners and Appeals of the Planning Department's findings and recommendation. The report is available on the Friday before the hearing or at the public hearing. It is also posted on the Municipal website at Zoning and Platting Cases Online Notification System.

What happens at the public hearing?

The public hearings are held in the Assembly Chambers at Loussac Library. The Zoning Board of Examiners and Appeals follows a published agenda. The hearing of each petition generally follows these steps:

  1. The chair will introduce the case and explain the procedure to be followed. The variance case number and the name of the applicant are read into the record. The board will hear and rule on any objections to the sufficiency of notice, or in other words, did the proper advertisement appear in the newspaper, were notices mailed, and was the property properly posted?
  2. The chair will give the Planning Department 10 minutes to briefly outline the case.
  3. You or your representative will then have 10 minutes for his/her presentation. Throughout the proceeding, the burden of proof rests upon the applicant, who must convince the board by a preponderance of evidence that the variance should be granted. The board members and the staff may direct questions to you through the chair.
  4. The Planning Department is asked if it has a rebuttal presentation for no more than three minutes.
  5. The chair opens the hearing for public testimony. Each person may testify for no more than three minutes and may be questioned by the staff, the you or the board, through the chair, at anytime during such presentation.
  6. The chair closes the hearing to public testimony.
  7. The staff, followed by the applicant, has the right of rebuttal. Neither presentation may exceed three minutes.
  8. The chair will ask for a positive motion from the board.
  9. The chair and the board discuss the motion and facts in support of or in opposition to the variance(s).
  10. The chair calls for roll call vote on the motion. No matter how many Board members are present it takes 5 yes votes to approve a variance.
  11. The chair will advise the applicant of the board's action, including findings of fact and conclusions of law, and of the applicable appeal rights. (Top)

What do I do if my variance is granted?

To complete the variance and make it official the following must be done within one year of the approval.

Any conditions attached to the approval must be satisfied.

A "Notice of Zoning Action" must be recorded with the State District Recorder. The Planning Department will prepare the Notice of Zoning Action after it has received notice or verified the variance conditions are satisfied. Planning Department staff will also advise you of where to take the Notice for filing and what must be returned to it when the filing is complete.

Finally, you must stay in compliance with the terms and conditions of your variance. Failure to do so may result in the loss of the variance.

What do I do if my variance is denied?

If your variance is not approved the matter is closed. The property must be brought into zoning compliance or plans revised to follow the zoning laws. However, decisions of the board may be appealed to Superior Court within 30 days of the board's decision. To appeal a board decision will require consulting with a private legal advisor.

Where can I find the actual laws regarding variances?

The text of the Municipality Code of Ordinances and the Code of Regulations is available at the Municipal libraries, the Planning Department, and on the Internet at municode.

For variances review the following:

  • Variance procedures and standards AMC 21.15.010
  • Zoning districts AMC 21.40
  • Supplementary district regulations AMC 21.45
  • Nonconformity uses AMC 21.55

What is...? (terminology)

An as-built?  An as-built is a scaled and dimensioned drawing done by a licensed surveyor that accurately depicts the location of all buildings on a property.

A conforming alternative?  Methods of physically changing the building or modifying the design plans to meet the zoning laws to avoid variances are conforming alternatives. The Zoning Board will look at feasible conforming alternatives as an option to not granting a variance.

A cut-off date?  The Planning Department establishes an annual schedule for the Zoning Board public hearings which includes enough time between accepting a variance petition and the public hearing to do the legal notice to neighbors and solicit information from government agencies and citizens on the petition. The cut-off date is the starting point and the last day a petition can be accepted for a specific hearing.

An encroachment?  When a building is too near to a property line it is encroaching.

A variance?  The zoning system recognizes that not all property is flat and level, and proportionally shaped. A variance is a method used in zoning to insure that each property is treated equally or has parity with neighboring properties.

The Zoning Board of Examiners and Appeals? The Zoning Board is made up of 9 citizens appointed by the Mayor to hear, examine the proposed variances and the law, and decide on whether to grant or deny zoning variances. The appointed Board members are not municipal employees. The Board meets once a month on the 2nd Thursday.

Zoning?  Zoning is a system of laws to regulate use of property. It includes provisions to separate land uses and provide minimum or maximum dimensions on for instance building height, distances from property lines, and the amount of land that can be used.