Article 6: Variances............................................6-1 
6.010 Purpose................................................6-1 
6.020 Definitions............................................6-1 
6.030 Eligible Regulations...................................6-2 
6.040 Ineligible Regulations.................................6-2 
6.050 Review Procedures and Submittal Requirements...........6-3 
6.060 Criteria for Variance..................................6-3 
6.070 Conditions.............................................6-7 
6.080 Expiration.............................................6-8 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


1Article 6: Variances 

 

6.010 Purpose 

 

This Article provides standards, criteria, and procedures for 
variances. This Code cannot provide standards to fit every 
potential development situation. The City’s varied 
geography, and complexities of land development, require 
flexibility. This Article provides that flexibility, while 
maintaining the purposes and intent of the Code. These 
provisions provide relief from strict application of 
measurable standards of the Development Code when the 
property has unique physical constraints or characteristics. 

 

When greater flexibility is desired, or where flexibility is 
desired but there are no unique physical constraints or 
characteristics of the property, application may be made 
through the Planned Unit Development process of Article 18. 
Flexible application of the Code for development or creation 
of lots through the Planned Unit Development process shall be 
managed through the provisions of Article 18, and does not 
require action under this Article. 

 

6.020. Definitions 

 

1. Minor Variance. 


 

(a) For Site Development Standards. A reduction below a 
minimum standard or an increase over a maximum standard, as 
follows: 

 (i) Building setback in front, side, and rear yards: 12 
inches or less. 

(ii) Building height: 18 inches or less. 


 (iii) Lot area, lots of record only: 50 square feet or 
less. 

 

(b) For Property Line Adjustments, Partitions, or Subdivisions. 
A reduction below a minimum standard or an increase over a 
maximum standard, as follows: 

 (i) Building setback: 12 inches or less. 

(ii) Lot width or depth: 2 feet or less. 

 (iii) Lot area: 50 square feet or less. 

 

2. Major Variance. 


 

A variance from any measurable standard other than defined as a 
minor variance. 

 

 




6.030. Eligible Regulations 

 

Variances are permitted for the following items when related to a 
unique constraint of the property: 

 

(1) Any measurable standard designed to regulate the physical 
characteristics of a permitted use; 

 

(2) Any measurable standard designed to regulate lot size, shape, 
or dimension; 

 

(3) Any other standard that this Code expressly specifies may be 
varied. 

 

 

6.040. Ineligible Regulations. 

 

Variances are prohibited for the following items: 

 

(1) To modify any standard when there is no unique constraint of 
the property; 


 

(2) To change any standard for a minimum size of a public utility; 


 

(3) To change any provision of this Code that specifies 
obligations for public improvements; 


 

(4) To allow a primary or accessory use that is not allowed by the 
regulations; 


 

(5) As an exception to any restrictions on uses or development 
that contain the word “prohibited”. 


 

(6) To reduce minimum lot area by more than 50 square feet. 


 

(7) As an exception to a threshold for a review. For example, 
expansion of a development by more than 25% could not be 
processed under criteria for a minor site plan review instead 
of criteria for major site plan review. 


 

(8) As an exception to a definition or classification. For 
example, an accessory structure is defined as one that does 
not exceed 1,000 square feet. By definition, a structure in 
excess of 1,000 square feet is not an accessory structure, and 
the definition can’t be varied. 


 

 

 


(9) As an exception to the procedural steps of a procedure or to 
change assigned procedures. For example, development of a 
Manufactured Dwelling Park in an R-2 zone requires a Type III 
procedure with a public hearing. The procedure could not be 
varied to require a Type I procedure without a public hearing. 


 

6.050. Review Procedures and Submittal Requirements. 

 

2Except as specified below, variances shall be processed in 
accordance with the procedures in Schedule 2-1. 

 

(1) Applications for variances shall be submitted and processed 
along with the land use application for site plan review, 
property line adjustment, partition, or subdivision. 


 

(2) Where the site plan review, property line adjustment, 
partition, or subdivision requires a higher procedure type, 
the variance shall be considered using the higher procedure. 


 

(3) Where the variance requires a higher procedure type, the 
related application, such as an application where the building 
permit serves as the development permit, shall be considered 
using the higher procedure. 


 

(4) When an application requires more than one variance, the 
applicant shall file a single application for all variances, 
and pay one fee for the application, in addition to the 
required application and fee for the site plan review, 
property line adjustment, partition, or subdivision. 


 

(5) The applicant shall include a written narrative with responses 
to the criteria in this Chapter. 


 

6.060. Criteria for Variances 

 

Previously granted variances shall not be considered to have 
established a precedent. The review body shall approve, approve 
with conditions, or deny the application. No variance shall be 
granted unless the review body finds that all of the applicable 
criteria under (A) and (B) have been satisfied. 

 

(A) Qualifying Condition. The applicant shall demonstrate that 
the following elements are present to qualify for a variance. 

 

(1) Unique Physical Constraint or Characteristic. The 
applicant has clearly described the nature of a unique 
physical constraint or characteristic of the property to 
which the variance application is related. The 
constraint is related to the particular property for 



which the variance is sought, regardless of the owner, 
and it does not relate to other property or personal 
conditions of the owner or applicant, such as personal 
financial circumstances or inconvenience. Either: 


 

(a) The property has unique physical constraints or 
characteristics peculiar to the land involved, over 
which the applicant has no control, such as lot size 
or shape, topography, natural features, or other 
physical conditions on the site or in the immediate 
vicinity, which are not typical of other lands in 
the same zoning district subject to the same 
regulation; or 


 

(b) The property has existing development, conforming or 
nonconforming, located such that it poses unique 
constraints to the further development of the 
property in full compliance with the standards of 
this Code. 


 

(2) Self-Created Constraint. If the review body finds the 
unique constraint described in Subsection (1) was self-
created, the property shall only qualify for a variance 
if the review body determines that the self-created 
constraint can no longer be reasonably eliminated or 
reversed, or that it is in the public interest to grant a 
variance rather than require the owner to eliminate the 
self-created constraint. A situation shall be 
considered self-created if: 


 

(a) A current or previous owner created the unique 
physical constraint or characteristic by dividing, 
reconfiguring, or physically altering the property 
in a manner such that it could only be subsequently 
developed, or further developed, by obtaining a 
variance to the regulations in effect at the time of 
alteration; and 


 

(b) At the time the current owner altered or acquired 
the property, he could have known that, as a result 
of the deliberate alteration, the property could 
only be developed, or further developed, by 
obtaining a variance. 


 

(3) Need for Variance. The applicant has demonstrated that a 
variance is necessary to overcome at least one of the 
following situations: 


 

 


(a) Allow Reasonable Use of an Existing Property. Due 
to the unique physical constraint or characteristic 
of an existing lot or parcel, strict application of 
the provisions of the Development Code would create 
a hardship by depriving the owner of the rights 
commonly enjoyed by other properties in the same 
zoning district subject to the same regulation. The 
variance is necessary for preservation of a property 
right of the owner, substantially the same as is 
possessed by owners of other property in the same 
district subject to the same regulation. 


 

(b) Better Achieve Public Purpose for Development, 
Division, or Adjustment of Lots and Parcels. There 
need not be a hardship to the owner to qualify for a 
variance under this Subsection. Due to the unique 
physical constraint or circumstance, the variance is 
necessary to better achieve the public purposes of 
the Comprehensive Plan and Development Code, with 
minimum deviation from standards. The variance will 
allow preservation of scenic, natural, or historic 
resources or features; allow a lot arrangement that 
represents a more efficient use of land; avoid odd 
shaped lots or flag lots; or alleviate other unique 
physical conditions to better achieve public 
purposes. 


 

(c) Allow Flexibility for Expansion of Existing 
Development. The location of existing development 
on the property poses a unique constraint to 
expansion in full compliance with the Code. The 
variance is needed for new construction and site 
improvements in order to provide for efficient use 
of the land or avoid demolition of existing 
development, where the public purpose can be 
substantially furthered in alternate ways with 
minimal deviation from standards. 


 

(4) No Other Reasonable Alternative. Reasonable alternatives 
to comply with the provisions of the Development Code 
have been exhausted. No reasonable alternatives have 
been identified that would accomplish the same purpose in 
accordance with the Code without the need for a variance. 
If applicable, the applicant shall, at a minimum, 
demonstrate that the following are not reasonable 
alternatives instead of the requested variance: 


 

 

 




(a) Lot line adjustment. 
(b) Modified setback option, pursuant to Section 22.200. 
(c) Alternate solar standards, pursuant to Section 
22.623. 


 

(B) Result of Relief. If the review body finds the proposal 
for a variance based on the criteria in Subsection (A) above, 
the review body shall only approve the proposal if it finds the 
specific proposal is consistent with the following criteria. 

 

(5) Best Alternative. When a variance is needed for a 
purpose identified in Subsection (3) above, the proposed 
variance shall be the best alternative to achieve the 
purpose compared with variances to other standards that 
could accomplish the same purpose. The best alternative 
will be the most consistent with the overall purpose of 
the Comprehensive Plan and Development Code, with the 
least impact to other properties and the public interest. 
Impacts to public facilities, substantial natural 
features, and natural systems shall be presumed to have 
broader public impact than localized impacts on nearby 
properties. 


 

(6) Minimum Deviation. Adherence to the standards of this 
Code shall be maintained to the greatest extent that is 
reasonably possible while accomplishing the purpose in 
Subsection (3). The deviation from standards shall be 
the minimum necessary to accomplish the purpose, and 
shall not convey a special right to the property that is 
not available to properties in the same zoning district 
subject to the same regulation. 


 

(7) No Hazard. The proposal shall not pose a public safety 
hazard such as a visual obstruction or traffic hazard, 
and shall not obstruct pedestrian or vehicular movement 
or impede emergency access. 


 

(8) Plan and Ordinance Consistency. The proposal shall not 
adversely affect implementation of the Comprehensive 
Plan, and shall not be materially detrimental or 
injurious to the purposes of the Comprehensive Plan or 
Development Code; other applicable plans, policies, or 
standards; or other properties in the same district or 
vicinity. 


 

 

 

 


(9) Mitigate Adverse Impacts. Adverse impacts shall be 
avoided where possible and mitigated to the extent 
practical. If a variance is not necessary to preserve a 
property right, or if the unique constraint in Subsection 
(1) was self-created, adverse impacts may be grounds for 
denial. 


 

(10) No Significant Increase in Residential Density. For 
development of an existing lot, if the variance is for a 
reduction to lot area, it shall not result in a 
significant increase in density. For a land division, 
the variance shall not result in an increase in density 
over that permitted by the zoning district, except that 
when a lot is reduced in size due to dedication of right-
of-way, minimum lot area may be reduced by fifty square 
feet or less. 


 

(11) Recommendation of City Engineer. The review body shall 
consider a written recommendation of the City Engineer 
when the variance is any to any of the following 
standards: 


 

(a) A street, access, or utility development standard in 
Article 27 or 28 of the Code. 
(b) The Flood Hazard or Slope Hazard provisions in 
Article 13 of this Code. 
(c) To allow encroachment into existing or planned 
right-of-way or public utility easement. When a 
variance is authorized to allow encroachment into a 
right-of-way, the owner shall sign a right-of-way 
use agreement that specifies the terms and 
conditions under which the right-of-way may be 
utilized. 


 

(12) Additional Criteria. Variances from the street standards 
in Article 27 of this Code shall meet the additional 
criteria of 27.121(11)(h)(4) General Design Standards, 
27.122(5) Connectivity Standards, and 27.123(15) Street 
Section Design Standards. 


 

6.070. Conditions 

 

If the review body finds that the proposal does not 
sufficiently mitigate impacts resulting from a variance, it 
may attach conditions necessary to ensure impacts are 
mitigated to the extent practical. The review body may 
consider the provisions in Section 19.053 as a guideline for 
applicable conditions, but shall not be limited to these 
provisions. 




6.080. Expiration 

 

A variance shall be part of the land use decision and shall 
only vary standards for the specific development proposal 
reviewed and approved by the review body. If the property is 
redeveloped, a new variance application shall be required as 
part of the new land use application. A variance shall not 
vary standards for future development of a property for which 
a land use application has not been submitted. 

 

The expiration of a variance shall be the same as the 
expiration date of the associated application for site plan 
review, property line adjustment, partition, subdivision, or 
other land use review. If no separate land use application 
was required, such as an application where the building permit 
serves as the development permit, the variance shall expire 18 
months from the effective date of the review body’s final 
decision on the variance. Pursuant to Section 3.024, a 
decision shall be final upon the expiration of the period for 
filing an appeal, unless appealed. An extension may be 
granted pursuant to Section 3.025(2). 

 

 

 

 

 

 

 

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1Revised 12-17-03 by Ordinance 5205 

2Revised 4-20-05 by Ordinance 5285