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HomeMy WebLinkAboutChapter_66 Appeals Deviations and Variance Pr Title 18 Chapter 66 APPEALS, DEVIATIONS AND VARIANCE PROCEDURES 18.66.010 PURPOSES A. This chapter is adopted: 1. To establish procedures for granting relief from the requirements of this title subject to the standards of this chapter in order to preserve equitable implementation of the law, prevent special treatment to particular parties and preserve the various rights established by the Montana and United States constitutions of all persons subject to this title; 2. To provide through appeals of administrative interpretations a procedure for consideration of and resolution of disputes regarding the meaning and implementation of this title; 3. To provide through deviations a procedure for flexibility, as a means to support creativity and excellence of design, in the application of the standards of this title in overlay districts and planned unit developments as provided for in this title; 4. To provide through zoning variances a procedure for relief from the occasional inequities created by the physical standards of this title relating to zoning when such standards create a substantially unequal burden on a particular parcel of land in a fashion that would otherwise prevent the reasonable use of property, owing to physical circumstances unique to that parcel; 5. To prohibit the granting of variances that would be contrary to the public interest and endanger public health, safety and welfare; 6. To provide through subdivision variances a procedure for relief from standards relating to platting requirements or improvements within public rights-of-way when such standards would result in undue hardship and are not essential to the public health, safety and general welfare; and 7. To allow for appeals from decisions made by administrative staff approving, approving with conditions or denying applications for development approval. B. The Board of Adjustment shall hear and decide variances and deviations as follows: 1. Authorize in specific cases such deviations from the terms of this title relating to zoning as will advance the intent and purposes of this title and meet the standards established for the granting of deviations; 2. Authorize in specific cases such zoning variances from the physical standards of this title, exclusive of those items included as subdivision variances, that will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship, and so that the spirit of this title shall be observed and substantial justice done. C. The City Commission shall hear and decide appeals of administrative decisions, variances and deviations as follows: 1. When Reclaimed per Section 18.64.010.C, BMC. a. Authorize in specific cases such deviations from the terms of this title relating to zoning as will advance the intent and purposes of this title and meet the standards established for the granting of deviations; and b. Authorize in specific cases such zoning variances from the physical standards of this title, exclusive of those items included as subdivision variances, that will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions will XVIII-66 1 9/2006 result in unnecessary hardship, and so that the spirit of this title shall be observed and substantial justice done. 2. 2.. Authorize in specific cases such subdivision variances from the platting requirements and standards for improvements within public rights-of-way required by this title where it is found that strict compliance would result in undue hardship and is not essential to the public health, safety and general welfare. 3. Consider appeals from decisions of the Planning Director regarding subdivision exemptions. 4. Consider deviations to standards of the title when proposed through a planned unit development. 5. Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this title or of any standards adopted pursuant thereto. An aggrieved person may appeal the final decision of the Planning Director in the manner provided in this chapter 18.66.020 HEARING AND NOTICE REQUIREMENTS A. There shall be a hearing before the Board of Adjustment or City Commission for any appeal of administrative decisions and interpretations and for each application for any variance or deviation. The hearing shall be held at an appointed time and place. Testimony shall be taken by the BOA or Commission from persons interested in the application and from the Planning Department staff. B. The Planning Director or Clerk of the Commission shall give public notice as required by Chapter 18.76, BMC of all public hearings to be held before the BOA or City Commission. Notification of appeal procedures shall be included in the initial posting and notice of the proposal, provided that an initial posting and notice is required by Chapter 18.76, BMC. 18.66.030 ADMINISTRATIVE PROJECT DECISION APPEALS A. An aggrieved person may appeal the final decision of the Planning Director in the manner provided in this section. Any appeal of a final administrative decision to approve, approve with conditions or deny an application shall be an appeal on the basis of the information available to the Planning Director including this title, all submitted application materials, review and recommendations by administrative staff or advisory bodies, public comment and such other materials as were available. Denial of requests for waiver or alteration of applicable regulations is not a decision subject to appeal of an administrative decision. This section shall also apply to decisions by the Planning Director regarding evasion of the Subdivision and Platting Act per §18.10.070, BMC. B. Application of Appeal Procedures. Appeals from administrative staff to the City Commission or the courts are set forth in the various sections of this title. Said appeals are permitted under the provisions of this section in the manner set forth herein. 1. These appeal procedures shall apply to the decisions brought forth by the Planning Director. 2. Appeals shall be from the Planning Director to the City Commission according to Section 18.66.010, BMC. 3. In reviewing an appeal the City Commission shall consider the application as if it were the original approval. C. Filing of Notice of Appeal. An appeal shall be taken by filing with the Clerk of the Commission a notice of intent to appeal by 5:00 pm on the fourth business day following the final decision of the Planning Director, and a documented appeal and appeal fee within seven business days of the final decision of the Planning Director. Such notice of intent to appeal shall include the following: 1. The action of the Planning Director which is the subject of the appeal; and 2. The date of such action. D. Appeal Contents. In all cases, the complete appeal application shall include, and shall not be deemed filed until, all of the materials required by §18.78.140, BMC is submitted. XVIII-66 2 9/2006 E. Notice of Appeal. Once a complete appeal has been filed and a hearing date is set, notice of the appeal shall be provided in the same fashion as was required for notice of the initial application. The date, time and location for the public hearing on the appeal before the City Commission shall be included in the required notice of the appeal. F. Scheduling of the Hearing. Upon receipt of a complete appeal application the Clerk of the Commission shall place the appeal on the next available regularly scheduled City Commission agenda for scheduling. The City Commission shall schedule the hearing of the appeal within thirty working days of the agenda item to set the hearing date. G. Material. The material to be considered by the City Commission shall be the record of the project review, including the Planning Director’s decision, in addition to materials that may be submitted during the processing and review of the appeal. 1. No less than fourteen calendar days prior to the appeal hearing before the City Commission the Planning Department shall transfer the entire record of the application to the City Commission. 2. Any materials submitted by the appellant shall be provided to the City Commission no less than fourteen calendar days prior to the appeal hearing before the City Commission. H. Procedure of the Hearing. At the hearing on the appeal, the following procedure shall be followed: 1. Only arguments and evidence relevant to the application shall be presented. The presentation shall be made in the following order, subject to such limitations, in time and scope as may be imposed at the discretion of the presiding officer: a. Explanation of the application and nature of the appeal and presentation by Planning Department staff; b. Presentation of position by the applicant and/or representative; c. Presentation by any person who is a proponent or an opponent of the application; and d. Motion, discussion and vote by the City Commission. 2. No person making a presentation shall be subject to cross-examination except that members of the City Commission and the City Attorney may inquire of such person for the purpose of eliciting information and for the purpose of clarifying information presented. I. Alternative Actions Available to the Appellate Body. At the conclusion of the hearing, the City Commission shall approve, approve with conditions or deny the application. 18.66.040 ADMINISTRATIVE INTERPRETATION APPEALS A. A request for appeal of an interpretation of this title, including classifications of use per Chapter 18.14, BMC, shall be made by filing an application, with appropriate fees, with the Clerk of the Commission within 30 calendar days of the interpretation decision. After receiving a completed application the Clerk of the Commission shall schedule a hearing at a regular Commission meeting. In all cases, the complete application shall include, and shall not be deemed filed until, all of the materials required by §18.78.150, BMC are submitted. B. The Commission shall cause to be made such investigation of facts bearing on the application as will provide necessary information to assure that the action on each such application is consistent with the intent and purpose of this title. During time of appeal all construction shall cease and shall not commence until approved by the City Commission. C. When interpreting the meaning of this title, subsections of the ordinance shall be construed in a manner that will give effect to them all as the ordinance derives its meaning from the entire body of text taken together. D. The concurring vote of four members of the Commission shall be necessary to reverse any order, requirements, decisions or determination of any administrative official, or to decide in favor of the applicant. XVIII-66 3 9/2006 18.66.050 DEVIATIONS All requests for deviations in the neighborhood conservation overlay district, entryway overlay districts or through the PUD process shall be heard by the BOA. Deviations may only be applied for in conjunction with submittal of a development proposal of a type authorized by Chapters 18.34 and 18.36, BMC. Standards and criteria for award of deviations are contained in Chapters 18.28, 18.30 and 18.36, BMC. The concurring vote of four members of the BOA shall be necessary to grant requested deviations to this title. The granting of a deviation is an exercise of administrative power that can effect no change in the ordinance. A deviation may be granted only in a specific instance permitting a nonconformity in order to accomplish the specific objectives of Sections 18.28.070, 18.30.080, and 18.36.030.D., and provided the standards and criteria imposed are met. Deviations shall not be granted for relief from procedural requirements, or to waive or vary the application of an ordinance provision imposing specific safety requirements, or to waive or vary the application of other ordinances or statutes 18.66.060 ZONING VARIANCES A. Application. A request for one or more variance(s) shall be made by filing an application, with appropriate fees, with the Planning Director at least 30 calendar days prior to the BOA hearing and shall be accompanied by the materials described in §18.78.160, BMC. B. Investigation of Facts. The BOA shall cause to be made such investigation of facts bearing on the application as will provide necessary information to assure that the action on each such application is consistent with the intent and purpose of this title. C. Criteria for Consideration and Findings. In acting on an application for a variance, the BOA shall designate such lawful conditions as will secure substantial protection for the public health, safety and general welfare, and shall issue written findings setting forth factual evidence that the variance meets the standards of §76-2-323,MCA in that the variance: 1. Will not be contrary to and will serve the public interest; 2. Is necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this title: a. Hardship does not include difficulties arising from actions, or otherwise be self-imposed, by the applicant or previous predecessors in interest, or potential for greater financial returns; and b. Conditions unique to the property may include, but are not limited to, slope, presence of watercourses, after the fact imposition of additional regulations on previously lawful lots, and governmental actions outside of the owners control; 3. Will observe the spirit of this title, including the adopted growth policy, and do substantial justice; 4. In addition to the criteria specified above, in the case of a variance relating to the flood hazard provisions of Chapter 18.58, BMC: a. Variances shall not be issued for areas within a floodway if any additional increase in flood elevations or velocities after allowable encroachments into the floodway fringe would result; b. Variances shall only be issued upon: (1) A determination that the granting of a variance will not result in increased flood hazards, present additional threats to public safety, be an extraordinary public expense, create nuisances, cause fraud, victimize the public, or conflict with existing state and local laws; (2) A determination that the proposed use would be adequately flood proofed as specified in Chapter 18.58, BMC; (3) A determination that a reasonable alternate location outside the floodplain is not available; XVIII-66 4 9/2006 (4) A determination that the variance requested is the minimum necessary to afford relief, considering the flood hazard; and (5) Approval of the Montana Department of Natural Resources and Conservation, upon request from the City, prior to formally approving any permit application that is in variance to these regulations. D. Authorization and Limitations on Approval. 1. The BOA may, after public notice and hearing, deny, approve or conditionally approve all requests for variances meeting all the criteria of this section, including: a. Requests to modify dimensional or other numerical requirements of this title; b. Requests for multiple variances; c. Requests to modify flood hazard district requirements subject to the provisions of Chapter 18.58, BMC, except that no variance shall be granted to allow construction of buildings within the floodway of a 100-year frequency flood as defined in Title 76, Chapter 5, MCA; and d. Requests for variances in conjunction with conditional use permits, except planned unit developments. Approvals of all such variances shall be conditioned upon BOA approval of the conditional use permit. 2. The scope and extent of the variance(s) shall be limited to the minimum relief necessary to provide reasonable use of the property. 3. In no case may the BOA grant variances to allow uses not already permitted pursuant to this title or alter administrative requirements of this title. Permission to change uses allowed on a parcel may be sought through a zone map amendment or an amendment to the text of the applicable zoning district. 4. The concurring vote of four members of the BOA shall be necessary to effect any variance of this title. 5. Notifications of approval for variances related to flood hazard requirements of Chapter 18.58, BMC shall notify the applicant that: a. The issuance of a variance to construct a building below the 100-year floodplain elevation will result in increased premium rates; and b. Such construction below the 100-year flood elevation increases risks to life and property. E. Effective Time for BOA Decisions - Variances Void When. The decision of the BOA shall be final except as provided in §18.66.080, BMC. If a building permit or land use permit is not obtained for the subject property within six months from the date of the BOA’s decision, the variance shall be automatically canceled and become null and void. F. Variances are subject to §76-2-321 through §76-2-328, MCA. 18.66.070 SUBDIVISION VARIANCES A. Procedure. The subdivider shall provide during the preapplication process, and include with the submission of the preliminary plat, a written statement describing the requested variance and the facts of hardship upon which the request is based. The Planning Board shall include their findings and conclusion regarding the requested variance in its recommendation to the City Commission. The City Commission shall then consider each variance at the public hearing on the preliminary plat. B. Review Criteria. Per §76-3-506, MCA, a variance to this title must be based on specific variance criteria, and may not have the effect of nullifying the intent and purpose of this title. The City Commission shall not approve subdivision variances unless it makes findings based upon the evidence presented in each specific case that: XVIII-66 5 9/2006 1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties; 2. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, an undue hardship to the owner would result if strict interpretation of this title is enforced; 3. The variance will not cause a substantial increase in public costs; and 4. The variance will not, in any manner, place the subdivision in nonconformance with any other provisions of this title or with the City’s growth policy. C. Variances from Floodway Provisions Not Authorized. The City Commission may not, by subdivision variance, permit subdivision for building purposes in areas located within the floodway of a flood of 100-year frequency as defined in Title 76, Chapter 5, MCA. Any variances related to floodways shall meet the standards of §18.66.060.C.4.a, BMC. D. Conditions. In granting subdivision variances, the City Commission may require such conditions as will, in its judgment, secure the objectives of this title. Any approval under this section shall be subject to the terms of the conditions designated in connection therein. Any conditions required shall be related both in purpose and scope with the relief sought through the variance. E. Statement of Facts. When any variance from this title is granted, the motion of approval shall contain a statement describing the variance and conditions upon which the issuance of the variance is based. F. Planned Unit Development. Where the standards and requirements of this title are proposed to be modified through a planned unit development, the applicable process shall be a deviation rather than a variance. G. Limitations on Approvals. For subdivision variances, the variance approval shall be null and void if the final plat is not filed within the time allowed for final approval by the City Commission decision. 18.66.080 APPEALS FROM CITY COMMISSION ACTIONS A. Zoning Variances. Any person or persons, jointly or severally, aggrieved by any decision of the BOA or City Commission under this chapter, or any taxpayer, or any officer, department, board or bureau of the municipality may present to a court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part and specifying the grounds of illegality. Such petition shall be presented to the court within the time frame established by state law. B. Zoning Decisions. An aggrieved person may appeal the approval, approval with conditions or denial of a development application acted upon by the BOA or City Commission by presenting to a court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part and specifying the grounds of illegality. Such petition shall be presented to the court within the time frame established by state law. C. Subdivision Appeals. A party identified in subsection C.1 below who is aggrieved by a decision of the City Commission to approve, conditionally approve or disapprove a proposed preliminary plat or final subdivision plat, including variances, may, within thirty days after the decision, appeal to the Eighteenth Judicial District Court, Gallatin County, State of Montana. The petition must specify the grounds upon which the appeal is made. 1. The following parties may appeal under the provisions of this section: a. The subdivider; b. A landowner with a property boundary contiguous to the proposed subdivision or a private landowner within the County where the subdivision is proposed if that landowner can show a likelihood of material injury to the landowner’s property or its value; and c. The Gallatin County Commission. XVIII-66 6 9/2006 2. If the aggrieved person is the subdivider, they may bring an action in district court to sue the City to recover actual damages caused by a final action, decision, or order of the City Commission or a regulation adopted pursuant to this chapter that is arbitrary or capricious. XVIII-66 7 9/2006